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Opinion by Mr. Justice Potter, We have here the appeal of the plaintiff, from the same judgment as that from' which we have just considered the appeal of the defendant, the Bryn Mawr Trust Company. Upon the motion of the plaintiff, judgment for want of a sufficient affidavit of defense was entered for the sum of $11,240.99, the amount of the purchase money paid by the plaintiff and his conveyancing expenses, with leave to proceed to trial before a jury for the balance of the claim. This would involve the determination of questions of fact, and the rule for judgment seems to us to have been properly disposed of, by the court below. We have often said that the ruling of the trial court in a case of this kind, will only be disturbed in cases where the statement of claim and the affidavit of defense, raise a pure question of law, and clear error has been committed. In Ætna Ins. Co. v. Confer, 158 Pa. 598, Justice Dean said (p. 604): “It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment. Besides, it is doubtful, whether the act of assembly authorizing these appeals has not, on the whole, aggravated delay.” In Paine v. Kindred, 163 Pa. 638, Justice Green, after quoting the above language, said (p. 643): “We do not mean to interfere where rules for judgment have been discharged in the lower courts, in doubtful and uncertain cases, but only in such as are very clear and free of doubt, as we have frequently said.” In Security S. & L. Assn. v. Anderson, 172 Pa. 305, it was said, per curiam (p. 307): “We are all of opinion that the rule for judgment was rightly discharged. But, assuming for argument sake, that the action of the court was at least doubtful, the result is the same. As was said in Griffith v. Sitgreaves, 81* Pa. 378, the act referred to 'was intended to reach only clear cases of error in law, and thus prevent the delay of a trial.’ Much valuable time is lost and expense incurred in endeavoring to convict the court below of manifest error in cases where at most there is merely a doubt as to the correctness of its decision. In such cases it is useless to insist on a reversal.” In Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388, it was said, per curiam (p. 390): “An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed by the Supreme Court in doubtful and uncertain cases, but only such as are very clear and free of doubt.” In the present case we cannot say that the right of the plaintiff to recover a larger sum than that for which judgment was entered, is clear, or free from doubt. The assignment of error is therefore overruled, and the judgment is affirmed.

Opinion by Mr. Justice Fox, Callender I. Leiper, the appellee, filed a bill in equity against the Baltimore & Philadelphia Railroad Company and the Baltimore & Ohio Railroad Company, praying for an injunction restraining the defendants from exceeding the rates specified in a contract made on the fifteenth day of March, 1887, between George M. Lewis, who was then the owner of certain stone quarries on a tract of land in the Township of Springfield, County of Delaware, State of Pennsylvania, and the Baltimore & Philadelphia Railroad Company. The agreement in question in its second paragraph provided that the parties of the second part, and their successors, would transport in cars to be furnished by them stone of the parties of the first part from the quarries to any point on the line of their railroad between Pairview and the City of Philadelphia, and to all points on the Schuylkill River Railroad and its branches, at a rate of freight not more than forty cents per ton, and that the actual freight to be charged from the said quarries to Philadelphia and to all other points which may be or become competitive shall not exceed competitive rates. There was a further agreement to transport stone from the quarries to the landing on Crum creek for the sum of five cents per ton, or one dollar per twenty-ton car. The company also agreed to transport stone from the quarries to any siding of the company in the City of Chester and in the contiguous boroughs at a charge not exceeding twenty-five cents per ton. By a conveyance dated the nineteenth of August, 1905, the appellee acquired all the estate, right, title and interest owned by the said George M. Lewis at the time of his death in and to the assets of a partnership formerly ex isting between him and the plaintiff, and in and to said quarries, including particularly the rights vested in the said George M. Lewis under the aforesaid agreement dated March 15, 1887, and the appellee thereby became the absolute owner of the quarries as well as the rights arising out of this agreement. The consideration of the agreement was the grant of a right of way through and over the land appurtenant to the quarries, which, at the time of the agreement, was owned by the said George M. Lewis. The railroad company was also required by' a provision of the agreement to locate a station at Avondale. Subsequently the Baltimore & Ohio Railroad Company, the other defendant, acquired by contract of leasing the property of the Baltimore & Philadelphia Railroad Company, and at the time of the filing of the bill was operating said line of railroad. It is conceded that the appellants have kept in every respect the terms and provisions of the agreement until the twenty-second day of February, 1915, when, in pursuance of the terms and provisions of the Public Service Company Law of Pennsylvania, the railroad company, having filed with the Public Service Commission a freight tariff raising the rates in question, claimed that it was entitled to collect from the appellee forty-two cents and twenty-six cents in place of the rate fixed in the agreement, namely, forty cents and twenty-five cents. The learned judge of the court below finds as a fact that the freight tariff was duly printed, posted and filed according to the Public Service Company Law of Pennsylvania, and became effective February twenty-second, 1915, and that accordingly forty-two cents and twenty-six cents respectively became the lawful rates for the transportation of commodities described in the agreement in question between the points named in said agreement. The appellee made no complaint to the Public Service Commission of Pennsylvania as to the reasonableness of the rate thus fixed in the freight tariff by the railroad company, nor has he made any complaint to the Public Service Commission setting forth the facts alleged in the bill of complaint filed in this case, nor has he asked for any relief or made any application of any character to the Public Service Commission relating to the facts developed in the case at bar. Notwithstanding this fact the learned judge of the court below held that the defendant was without legal right to require from the plaintiff the payment of the rates fixed in said freight tariff for the transportation of stone, and held that as the rates already paid since February twenty-second, 1915, were paid under protest it was the duty of the defendant to refund to the plaintiffs the excess received by them, with interest thereon. The court further directed that an injunction issue, perpetually restraining the defendant from demanding or exacting from the appellee a higher rate for the transportation of stone within the State of Pennsylvania. Defendants were further commanded to receive and transport stone at the rates fixed in the agreement. Under these facts has the court jurisdiction to make the decree that was entered in this case? One of the purposes of the passage of the Public Service Law was the creation of a tribunal by which the rates to be charged by public service companies in the State might be established. These rates must be reasonable in amount and must apply equally to all shippers. In the case of Armour Packing Company v. United States, 209 U. S. 56, considering a somewhat similar question, the court said “It cannot be challenged that the great purpose of the act to regulate commerce, whilst seeking to prevent unjust and unreasonable rates, was to secure equality of rates as to all and to destroy favoritism, these last being accomplished by the publication of tariffs, and forbidding rebates, preferences and all other forms of undue discrimination.” The language of the Act of 1913, creating the Public Service Commission, in defining its powers, gives the commission much the same powers as the Interstate Commerce Commission under the act of Con gress, and the language used by Mr. Justice Day in the case just quoted applies with equal force to the language of the Act of 1913. To permit the contract made between the appellee and appellants to stand as against rates established in a legal and orderly method and in conformity with the provisions of the law would be to nullify the purposes of the act. It would be impossible for the commission to enforce an equality of reasonable rates, except upon the basis that it is not bound by contracts previously entered into between a public service company and either a municipality, another corporation, or a private individual. The basis upon which this conclusion must rest is that under the Constitution of Pennsylvania, Art. XYI, Sec. 3, it is provided: “The exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State.” Where the rights of individuals under a contract which would otherwise be perfectly valid are in conflict with the “general well-being of the State,” the rights of the individuals must give way to the general welfare. It therefore follows that when, as in this case, the parties enter into a contract with a public service corporation relating to < rates, they are presumed to do so with the knowledge that the right of the State to exercise this police power in the future is expressly reserved, and that where the common weal and the interests of the public demand that the provisions of the contract thus entered into shall be modified, it can be done without any violation of the provision of the Constitution of the United States with reference to the impairment of the obligation of contracts. A public service company is granted its franchise by the State so that it may properly and efficiently serve its people. This grant is made subject to the reserved power of the Commonwealth to supervise and regulate the exercise of the franchise, and in the case of rates, to increase or decrease them as the public interest, as distinguished from mere private interest, may demand. It was necessary, therefore, to have some tribunal to regulate and determine questions of this character relating to the reasonableness of rates, and the legislature has wisely provided such a tribunal in the Public Service Commission. The fact that'the action of the Public Service Commission can by proper proceedings be reviewed by the courts furnishes the appellee with a full opportunity to be propeidy protected in the enjoyment of his rights. If the rate fixed in his contract is under all the circumstances a proper rate, this can be judicially determined. The fact that no complaint was made to the commission when the change of the rate was filed does not prevent the appellee from subsequently entering a complaint of this character: Art. V, Sec. 4, of the Act of July 26, 1913; Baltimore & Ohio Railroad Company v. Public Service Commission, 66 Pa. Superior Ct. 403. The question here presented is not new, but has arisen in a number of cases recently decided by this court in which it is held that, as the law now stands, in cases of this character a court of equity is without the necessary jurisdiction to make a decree. In case of the St. Clair Borough v. Tamaqua & Pottsville Electric Ry. Co. et al., 259 Pa. 462, this court said: “Since the Public Service Company Law has been upon our books, we have consistently adhered to the rule that matters within the jurisdiction of the commission must first be determined by it, in every instance, before the courts will adjudge any phase of the controversy (Bethlehem City Water Company v. Bethlehem Boro., No. 2, 253 Pa. 333, 337-8; New Brighton Boro. v. New Brighton Water Co. et al., 247 Pa. 232, 242) ; and it is plain that orderly procedure requires an adherence to this practice, otherwise different phases of the same case might be pending before the commission and the courts at one time, which would cause endless confusion. Under the established system, the commission, in the first instance, passes upon all changes of rates made by public service corporations, subject to a proper and well-regulated review by the courts, when and where all questions of law may be raised and determined; and this is not so because the courts have any desire to avoid the performance of duties cast upon them by the law, but because the people, speaking through the legislature, have declared that these duties shall be performed by a special tribunal created for the purpose.” In the case of Bellevue Borough v. Ohio Valley Water Company, 245 Pa. 114, the court said: “If this case in any of its aspects involves the reasonableness or unreasonableness of water rates, it is a sufficient answer to say that the section of the Act of April 29, 1874, P. L. 73, which gave courts the power to determine questions of this character was repealed by the Public Service Company Law, approved July 26,1913, P. L. 1374. In other words, the legislature took this power away from the courts and conferred it upon the Public Service Commission. Hereafter, so long as the Act of 1913 remains in force, the question of reasonableness of rates established by public service corporations, must in the first instance be submitted to the Public Service Commission when challenged. This is now the declared statutory policy of the law, and it is binding not only upon the interested parties, but upon the courts as well. We do not know that this position is seriously controverted by learned counsel for either side of the present controversy.” The view reaffirmed in the St. Clair case, supra, has been adopted in the late case of Klein-Logan v. Duquesne Light Company, 261 Pa. 526, and in V. & S. Company v. Gaslight Company, 261 Pa. 523. In both these cases the court held that equity was without jurisdiction to enforce a rate contract, and that the application must be made in the first instance to the Public Service Commission. ( We feel that the question of the binding effect of a contract such as we bave bere in controversy upon tbe jurisdiction of tbe Public Service Commission is sufficiently relevant to justify its consideration at this time. Some of tbe earlier cases bave suggested a distinction with reference to contracts of this character. This court bas beld that contracts fixing rates wbicb are for an indeterminate period will not be sustained. This perhaps carries with it tbe implication that a contract for a determinate or definite time might be sustained, although this bas not been definitely decided. We bave reached tbe conclusion that this is a distinction wbicb ought not to be maintained. Where parties enter into a contract wbicb relates to a matter wbicb may subsequently be tbe subject of revision by tbe State in tbe exercise of its police power, their contracts, whether definite or indefinite in point of time, must be beld subject to tbe right of tbe State to act in regard thereto. They cannot allege that tbe contracts, so far as tbe State is concerned, are inviolable. It is not, as we bave already pointed out, because of tbe interest of tbe parties to tbe contract, or either of them, that it may be revised or modified, but because of tbe greater good resulting to tbe public at large. In Turtle Creek Borough v. Pennsylvania Water Company, 243 Pa. 415, Mr. Justice Elkin said: “In conclusion it may not be improper to remark that these appeals contain many incidental and interesting questions of law, wbicb we do not deem vital to tbe decision óf tbe present case, and therefore bave refrained from discussing or deciding them. These questions will arise under tbe Act of July 26, 1913, P. L. 1374, known as tbe Public Service Company Law, and it would be unwise to anticipate their decision at tbe present time and under tbe old law.” This case bad its inception prior to tbe passage of the Public Service Company Law, and hence tbe effect of tbe Act of 1913 could not be properly considered or deter mined. This was followed by an opinion by the same Justice in Borough of Bellevue v. The Ohio Valley Water Company, 245 Pa. 114. In that opinion, in referring to the case of Turtle Creek Borough v. Pennsylvania Water Company, supra, the court said: “We did not then decide whether a contract between a borough and a water company, for a definite term of years and for specified rates during the limited term, would be enforced as between the parties, because that question was not then raised; and it is not raised now, so that this will be left as an open question until it is presented in concrete form upon facts calling for a decision of the point. We did decide in that case that a contract of this kind, unlimited by its terms, and hence indeterminate as to time, could not be enforced indefinitely, and must give way to the general policy of the law under which the legislature created a special tribunal to pass upon and determine questions relating to the reasonableness of rates charged by public service corporations.” There seems to be no difference in principle between the case of a contract indeterminate and one that is determinate, nor is there any difference in principle between a contract with a borough, with a corporation, or with an individual. Any contract of this character, whether for a definite or indefinite period, must give way when its terms conflict with the rates fixed in the method prescribed by the Public Service Act of 1913. We hold that the court below was without jurisdiction to make the decree prayed for, and that the appellee must be remitted to his remedy of filing a complaint with the Public Service Commission, under the provisions of the Act of July 26,1913, P. L. 1374. The decree is therefore reversed and the bill of complaint dismissed, at the costs of the appellee, without prejudice to the right of the appellee to apply to the Public Service Commission.

Opinion by Mr. Chief Justice Moschzisker, The South Philadelphia State Bank became insolvent' and was taken in charge by Peter G. Cameron, State Secretary of Banking; when he filed an account in the court below, the National Surety Company, which had entered a bond to secure the Commonwealth of Pennsylvania against loss as a depositor in the bank and had paid the Commonwealth the amount of its deposit, $10,000, claimed the right to stand, by subrogation, in the place of its payee, in all respects. This demand was listed as an “objected claim,” and the court below refused to allow it, on the ground that “the surety company was a claimant, other than a depositor,” which had not entered its claim within the time required by section 41 of the Banking Act of June 15, 1923, P. L. 809, 829, and therefore was entirely “debarred from coming in upon the fund.” The claimant has appealed. When the case was before us on a former appeal (288 Pa. 300), we said (at p. 305) that appellant’s claim “must be presented at the time and in the way prescribed by the statute, exactly as the Commonwealth Avould have had to present it if the amount of the deposit was still due to it.” In other words, the surety company, in presenting any claim groAving out of its payment to the CommonAvealth, was to act as though it Avere a depositor of the bank. It is enough to say, without detailing the relevant facts, that, correctly treating the claim in question as that of a depositor, the surety company presented it in the manner and within the time required by the Act of Assembly; hence the claim should have been allowed to some extent. ' The broad question is, Can appellant properly claim to be entitled, by preference, to the full amount it paid the Commonwealth? Appellant urges that, had the Commonwealth itself presented the claim, it would have been entitled to a preference which would have brought about full payment of the amount due, and that, as surety, it is entitled by subrogation, not only to the rights which the Commonwealth possessed as an ordinary depositor in the bank, but to the preference which it enjoyed over all other depositors in case of the insolvency of the depository. Whether or not the State’s sovereign right of preference passed to appellant is the controlling question in the case. When the surety company paid the Commonwealth the amount of its deposit, the state treasurer executed a written assignment to appellant of the Commonwealth’s claim. Since this special assignment was made without warrant of law, it gave no greater rights to the assignee than the latter already had acquired under the equitable doctrine of subrogation: see South Phila. State Bank v. National Surety Co., 288 Pa. 300, 303. The point is, On the facts of this case, considering ilie rights of all the depositors in the bank, the peculiar nature of the right of preference enjoyed by the Commonwealth, and such minor considerations as present themselves, do the decided cases in this State and the general principles of our law dictate that the National Surety Company should, upon meeting its obligations under the bond which indemnified the Commonwealth, enjoy the latter’s sovereign preference as a creditor, as against the rights of all other depositors? By the common law of England, at the time of the American Revolution, the king was entitled to have a debt due the crown paid before that of any of his subjects: Attorney-General v. Andrew, 1 Hardres 22, 145 Eng. Reprint 360. This privilege belonged to the king in the capacity of parens patrirn, or universal trustee (Blackstone’s Commentaries, Sharswood’s ed., vol. 1, pp. 238, 240), and passed to the State of Pennsylvania in its sovereign capacity: Com. v. Lewis, 6 Binn. 266, 271; Com. v. Baldwin, 1 Watts 54, 55; Booth & Flinn v. Miller, 237 Pa. 297, 307. For an excellent general discussion and citation of cases on this subject, see U. S. Fidelity & Guar. Co. v. Bramwell, 108 Ore. 261, 217 Pac. 332. Though the State of Pennsylvania has a sovereign right of priority over all other creditors, it by no means follows that, on the facts in this case, such right would pass to one in the position of appellant. It must be remembered that appellant, a surety obtained and paid by the insolvent bant, not by the Commonwealth, claims the right to enjoy the sovereign privileges of the latter, and this under the.equitable doctrine of subrogation; the right claimed is to a preference over all other depositors of the bank. Since the right of priority of the sovereign state exists pro bono populo, it follows that where a situation arises in which the State, having been paid in full, is not immediately concerned, and where the transfer of its right of priority would result in prejudice to one class of its citizens for the benefit of another, it cannot be held that the good of all the people would thus be served. It may well be assumed that the ordinary depositor in a bank which enjoys state deposits, knowing that, in event of the insolvency of the institution, the State has the right to priority of payment, would likewise know that the laws of Pennsylvania require all state deposits to be secured by bonds with ample security thereon. Furthermore, since the doctrine of subrogation is an equitable one, the ordinary depositor might properly believe that, in event of the insolvency of their depository, if no necessity existed for the State to protect itself by exercising its sovereign light to priority of payment, that right would not be used to his prejudice, and, on such basis, he would make, or continue, his deposits; therefore, the doctrine in question should not be allowed to operate in a manner to produce prejudicial results, to such depositors. The proper rule is that the State’s right to a preference over other creditors, being a sovereign right enjoyed for the benefit of all the people, cannot be transferred to individuals except by express legislative sanction (Booth & Flinn v. Miller, supra, 307), and then only to serve the interests of all the people. In Pennsylvania, no legislative warrant is found for such a course; and it may be asked, How would the interests of all the people be served, in a case like the present, should we, under the equitable doctrine of subrogation, undertake to declare that the State’s right of priority passed to appellant? The Act of February 17,1906, P. L. 45, requires every, banking institution receiving state deposits to furnish ample security against loss to the Commonwealth; and in these days of great corporations which make a business of selling security, it cannot be reasoned that, in order to obtain these purchasable bonds, it is necessary that the law should allow to those dealing in them a transfer of the State’s sovereign right of priority, if the dealer be obliged to pay a debt due the Commonwealth. Such security is readily purchasable and those who deal in it may always adjust their premiums to cover the insurance risk undertaken. We conclude that appellant surety company has the equitable right to stand in the shoes of the Commonwealth as a depositor, but not to enjoy its right of priority over other depositors. When the bank failed, the Commonwealth had all the rights of an ordinary depositor; those rights passed by subrogation to appellant. The Commonwealth had also the sovereign’s right to priority of payment over other depositors, but, owing to the peculiar nature of that right, it would not pass by subrogation to appellant. Cases may be found where the courts have allowed sureties, who paid debts due to a sovereign state, to take the latter’s place in all respects; and appellant-quotes from several opinions which suggest such a rule to be the law. Some of these decisions are distinguishable on their facts, many of them are governed by statutory provisions, others are based on procedure unknown to the courts of Pennsylvania, still others indulge in unsound reasoning and cite inapplicable precedents; all of which will be explained in the course of this opinion. The decision in Sheaffer’s Est. (No. 1), 281 Pa. 138, cited by appellant, really turns more on the peculiar facts of that case than on the application of the general principles involved in the present controversy. There, the surety on a bond of a liquor distiller paid the United States revenue tax which his principal had failed to meet; subsequently, execution was issued against the latter, under which all his property was seized. Thereupon, a written agreement was entered into between the distiller and his surety, consented to by the former’s creditors, the purpose being “to prevent sacrifice of the [distiller’s] property.” Under this written agreement, the distiller’s assets were turned over to the surety, upon the stipulation that when he “realized the entire amount of the revenue tax paid by him, together with interest and costs,” he should re-assign the balance on hand. The surety, and, after his death, his personal representative, worked incessantly to have Congress remit the tax, which they claimed should not have been exacted, because the property against which it was assessed had been destroyed by fire while in a bonded warehouse. These efforts were successful, and eighteen years after payment of the tax, the money was refunded by the national government. When an account in the distiller’s estate came up for adjudication in the orphans’ court, the estate of the surety put in a claim, which was allowed; the matter came before this court on appeal from that allowance. While we there refer to some federal cases which rule that, “where the surety on a distiller’s bond pays money to the government on account of his principal, he is entitled to be subrogated to the rights of the government and the claim is entitled to priority,” we did not note that this was by virtue of federal statutes which so ordain (see statutes mentioned in annotation to Woodyard v. Sayre, 24 A. L. R. 1497, 1502, particularly 1505-6), and not by virtue of any equitable principle; although the United States courts have ample equity powers: see article on “Equity Jurisdiction in the Federal Courts,” 75 Univ. of Penna. Law Rev. 287. Moreover, in the Sheaffer Case, as may be seen by the above statement of facts, the surety created (as we say in law) the fund; and the agreement between him and his principal, consented to by the latter’s creditors, controlled the case. Under this agreement, the surety or his estate was clearly entitled to the amounts claimed by him, and the distiller, his estate, and consenting creditors were estopped from claiming otherwise; we there expressly so ruled. As previously stated, so far as subrogation entered into the case, it was because the act of Congress ordained subrogation, and not by virtue of any equitable principle. We may add that the syllabus of Sheaffer’s Estate is misleading in part, because it states broad general principles without giving the facts to which they are applied in the opinion; that case, properly understood, contains no ruling inconsistent with our present decision. Reed v. Emory, 1 S. & R. 338, 340, is cited in the Sheaffer Estate opinion, and in both cases the surety’s privilege of taking the principal’s rights against the debtor, including the right of priority of payment, was not at all by virtue of the equitable doctrine of subrogation, but by virtue of an act of Congress, which, as there shown, expressly provided that, “If the principal in any bond to the United States......shall be insolvent and the surety in such bond shall pay to the United States,......such surety shall have and enjoy the like advantage, priority and preference for the recovery and receipt of said money......as are reserved and secured to the United States by the Act of 4th August, 1790,” and this last mentioned act provides that, in cases of insolvency, debts due the United States shall be “first satisfied.” (The above italics are ours.) See also Champneys v. Lyle, 1 Binn. 326, 331, and other cases involving subrogation to the rights of the federal government, all of which depended upon acts of Congress conferring the government’s right of priority on the one claiming to exercise it. As to United States F. & G. Co. v. Carnegie Trust Co., 161 App. Div. 429, 146 N. Y. Supp. 804, relied on by appellant, in there deciding that the surety was “subrogated to the State’s right to a preference,” the court cites federal, English and other authorities, where the privilege of exercising the sovereign’s right of priority was specially granted by statute or otherwise, and did not result purely from the application of equitable principles, without noting that all-important fact; moreover, the court indulges in reasoning, to support its decision, with which we cannot agree. All of this may be said also of Orem v. Wrightson, 51 Maryland 34, and other cases following it, like, for instance, Woodyard v. Sayre, supra. Appellant speaks of the “habit of the English Court of Exchequer to place sureties who paid the crown’s debt in the situation of the crown,” but a study of the cases relied on shows that this was done as an act of sovereign grace extended by the king, through the medium of “his own high court, for the collection of his debts.” The king possessed the prerogative of priority (Chitty on Prerogatives of the Crown, p. 262 et seq.) and the sureties, who met the obligations of the king’s debtors, had only the rights of common creditors. In the cases cited by appellant, as we read them, the court of exchequer did not grant subrogation as a matter of equitable right; on the contrary, in each instance the surety specially asked that it be “subrogated” to the sovereign right of priority possessed by the crown, and its prayer was granted, as a matter of sovereign grace, only after the crown had given its consent. In justice to appellant, however, it should be said that its mistake, in viewing the grant of “subrogation” in those cases as a pure matter of equity, has been made also by several text writers (for examples, see Dixon on Subrogation, p. 120; Harris on Subrogation, p. 202; Sheldon on Subrogation, p. 138; 15 Halsbury, Laws of England 512) and judges, who, following someone else, apparently failed to study minutely the English cases mentioned by them, precisely the same authorities being cited in each instance. Some of these cases we shall now proceed to consider. In Regina v. Salter (1 H. & N. 274 et seq., 156 Eng. Reprint 1207-8), relied on by appellant, we find that counsel “moved on behalf of the sureties......for an order that they should be placed in the situation of the crown, and that the writ of extent [used against the king’s debtors] which had issued against the defendants, should be put in force on their [the sureties] behalf until they should have been reimbursed the sum paid by them in discharge of said duties.” The crown, the defendants and their assignees were served, the court saying, “no one appears to oppose the application.” The report then shows that the crown appeared by counsel and expressly consented to the application of the sureties. After the sovereign consent was given, and not until then, did the court allow the sureties to be “placed in the situation of the crown.” In short, so far as the privilege of priority of payment is concerned, the sureties came into the king’s court, not claiming an equitable right, but petitioning for an act of the king’s grace, which was allowed to them only after the crown had given its formal consent. (The above italics are ours.) The second case cited is Regina v. Robinson, reported in a note in 156 Eng. Reprint 1207-8. There, following plaintiff’s application, an “order nisi” was allowed, to show cause why plaintiff, — a surety who had met the obligation of the queen’s debtor, — should not be placed in the position of the sovereign, and it was directed that this order should “be served on the defendant and the crown” (the italics are ours). The report closes with the words “counsel for the crown appearing and not opposing,......the rule was made absolute.” The King v. Bennett, 1 Wight. 1, 145 Eng. Reprint 1151, also cited to us, contains no ruling which indicates a procedure differing from that in the above two cases, and the several authorities mentioned in the footnote to King v. Bennett show procedure in accord with those cases. In point of fact, it is significant that, "in all of the cases now under discussion, to carry over the crown’s right of priority to the one who had paid a debt due to the king, an order, specially and particularly prayed for, was entered. There is nothing in any of these cases to suggest that the order in question was merely in the nature of a declaration signifying the operation of general law or equitable principles; on the contrary, in each instance the character of the proceeding negatives that idea. While it is true that application of the equitable doctrine of subrogation “must depend upon the circumstances” involved (Pingrey, supra, p. 183, section 156), yet, according to the principles of equity as administered in the courts of Pennsylvania, all who happen, at any time, to occupy a particular situation, are entitled to like rights of subrogation. The American equity courts did. not take over the powers exercised by the court of exchequer, to grant or decline, in individual cases, the privilege of priority in accord with the particular consent or refusal of the crown. With us, the right to subrogation, with its attending advantages, arises by operation of, and depends on, equity alone, — it, without more, works the substitution. Whereas, in the exchequer cases cited to us, where sureties were allowed to succeed to the position of the crown,— although the result in each instance doubtless was equitable, — the substitution was by favor of the king, in that his counsel appeared and gave assent, and not purely by operation of equity principles. In every instance, apparently, the king’s counsel actually and formally consented to the transfer of the crown's privilege of priority over other creditors; when and to what extent this should be done appears to have depended on the circumstances of the particular case: see The Queen v. O’Callaghan, 1 Irish Eq. 439; see also Sheldon on Subrogation 138, section 88, notes 8 and 9, and Pingrey on Suretyship and Guaranty 347, section 338, note 37; likewise Rex v. Clarke, 1 Bunb. 221, 145 Eng. Reprint 654, where subrogation was refused. To summarize: In the English authorities relied on by appellant and by some of the text writers, the privilege of priority did not arise, and was not treated, purely as an equitable right, but was petitioned for and specially granted. Again, in our field of federal law, a series of acts of Congress serve the same end for sureties who pay debts due to the national government. None of the cases cited to us, either English or American, was controlled exclusively by the equitable doctrine relied on by appellant, and they, as well as the cases in the different states which follow them, fail, in each instance, to appreciate this fact. We disagree with the New York and Maryland view, as shown in United States Fidelity & Guaranty Co. v. Carnegie Trust Co., 161 App. Div. 429, 146 N. Y. Supp. 804, and Orem v. Wrightson, 51 Md. 34, and agree with the view of the Supreme Court of Michigan, in Zimmerman v. Chelsea Savings Bank, 161 Mich. 691, 704, 125 N. W. 424, 429, to the following effect: “Assuming the [sovereign’s] right of priority......to exist in this State, the courts, in the absence of any assertion of the right by the State, and after the debtor has been divested of all control of its property in proceedings authorized by and following the statutes of the State, should not, sua sponte, assert the right in favor of a guarantor of the debtor.” In connection with this last mentioned decision, it may be noted that, even in jurisdictions where sovereign rights pass by subrogation, the surety is not necessarily subrogated to “all the prerogative rights of the government” (Sheldon on Subrogation 138, section 88, notes 8 and 9), and, hence, the right to priority of payment will not invariably pass to an indemnitor of the government. All the English cases cited to us by appellant were decided prior to some more recent ones disclosed by our own research. In 1878, the Chancery Division of the Supreme Court of Judicature had before it the case of In re M’Myn, 33 Ch. Div. 575; Chitty, J., there said: “I think effect should be given to the words of the [Mercantile Law Amendment Act, 1856, s. 5] which say that the surety may stand in the place and use the name of the creditor; it follows that [the surety] is entitled to obtain what she has paid. w... .and...... have priority over the unsecured creditors of the testatrix.” It is quite plain that this decision rested on an act of Parliament, passed in 1856, and concerned the priority rights of an ordinary judgment creditor, — not a sovereign’s priority. In no sense does the decision affect our understanding of the earlier cases cited to us by appellant. In 1887, the same tribunal had before it the case of In re Lord Churchill, 39 Ch. Div. 174, where, citing In re M’Myn as an authority, the court said that the right of subrogation, including the crown’s privilege of priority of payment, could be taken advantage of “independently of the act,” by a surety who had paid a debt due to the crown. The judge who wrote this last mentioned decision made no reference to the earlier cases, and seems to have misapplied the decision in In re M’Myn; but, be that as it may, both of these decisions were rendered long subsequent to those relied on by appellant, and in no way affect the construction we have placed upon the latter cases. When considering the older English adjudications, cited by appellant, it must be remembered that the court which decided them arose out of the king’s royal office for the collection of his taxes. The court of exeheqer’s original powers came directly from the crown, and it exercised none of the royal prerogatives other than those ceded to it by the king. With these facts in mind, the refusal in those cases to grant the “subrogation” prayed for, until the crown gave its express consent, must be viewed as a refusal on the part of the court of exchequer to exercise independently a prerogative power which the sovereign had not delegated to it. To interpret the cases otherwise and say that the court of exchequer called in the legal representatives of the crown merely to make sure the sovereign would not be prejudiced by the “subrogation” is to disregard the historical development of that ancient tribunal: see, at length, “The King’s Counsel,” by J. F. Baldwin, pp. 41, 47, 217, 219, 225, 302. Though, at the time of the older cases we are now discussing, like today, subrogation was treated under ordinary circumstances as an equitable right of sureties, yet in none of them do we find equitable subrogation or prejudice to the crown mentioned; instead, we find the plaintiff petitioning for a prerogative right, and the court referring to the crown’s action in the matter as giving its “consent ” In conclusion, let us test the reasonableness of the rule insisted upon by appellant, — that, under the equitable doctrine of subrogation, an indemnitor of a creditor is always to be given the benefit of all the rights and privileges of the latter, and when the creditor is a sovereign state, its paramount right to priority of payment passes to the indemnitor, — by supposing a case where not only the debtor of the Commonwealth but the indemnitor both prove to be insolvent, yet the latter is able to and does pay one half of the principal debt, leaving the Commonwealth to claim the other half from the estate of the original debtor, with the indemnitor also claiming against such estate by subrogation. In such a case, if the Commonwealth’s privilege of priority must be shared with the indemnitor, this plainly would cause a conflict between the two, and might prejudice the Commonwealth itself. A rule which in operation could bring about these results ought not to be adopted by the courts unless ordained by the legislature as a matter of public policy. Under the English cases, if any part of the principal debt remained unpaid, though the surety had paid all for which he was bound, he was not subrogated to the crown’s right of priority “in competition with the government” (Sheldon on Subrogation, 138, section 88); and there, as we have seen, counsel for the state appeared and consented before the latter’s sovereign right of priority was allowed to pass to the one who had paid the debt due to it. Thus the state could avoid the possibility of prejudice. While under a system like ours, where the doctrine of subrogation is administered according to general equity principles alone, in the absence of appropriate legislation wisely regulating such matters, we can imagine many instances where a transfer of any part of the state’s sovereign privilege of priority might bring the transferees in active competition with the Commonwealth to the prejudice of the latter. It may be well to add, that succeeding to the priority of the state is materially different from taking over a right of priority vested in an ordinary creditor by virtue of contractual relations between the latter and the principal debtor. The last mentioned right, being contractual in its inception, may, for purely equitable reasons, pass to the surety when he pays any part of the principal debt; while the state’s right to priority is a sovereign prerogative, assumed by it, and not subject to equity jurisdiction. In the first case, the surety succeeds only to a right which the debtor created, when solvent. In the second, he attempts, under the doctrine of equitable subrogation, to take over a sovereign right, as sTimed by the state to serve its own purposes; and this, in our opinion, cannot be done without legislative authority. Under our law as it now stands, the Commonwealth’s rights as a depositor passed by subrogation to appellant, but its sovereign right to priority of payment over other depositors did not so pass. The court below will make distribution .accordingly. The decree appealed from is reversed to the extent above indicated; costs to be paid out of the fund.

Opinion by Mb. Chief Justice Horace Stern, These are six appeals, consolidated into one record, from judgments of the Court of Common Pleas of Dauphin County sustaining resettlements of corporate loans taxes against the appellant corporation for the years 1940 to 1945, both inclusive. The appeals are based partly on what amounts to an. attempt to obtain a review of our decisions in Fidelity-Philadelphia Trust Company Tax Case, 354 Pa. 355, 47 A. 2d 267, and Commonwealth v. New York, Chicago and St. Louis R. R. Co., 354 Pa. 388, 47 A. 2d 272, and partly on a contention that the Commonwealth, by reason of certain facts, is estopped from collecting the taxes for which these judgments were rendered. On October 1, 1902, Western Maryland Rail Road Company, a corporation of the State of Maryland, whose principal line of railroad then extended from Baltimore to Hagerstown, Maryland, created a first mortgage to secure an authorized issue of 4% bonds of which some $46,000,000 were ultimately issued. In 1909 the railroad was sold at foreclosure sale to a new company known as The Western Maryland Railway Company, also incorporated under the laws of the State of Maryland. A part of the railroad system was owned by various companies which had been formed to construct extensions, several of which were Pennsylvania corporations, and in 1917 The Western Maryland Railway Company and seven wholly-owned subsidiary corporations consolidated under the laws of Maryland and under the Pennsylvania Act of March 24, 1865, P. L. 49, the consolidated corporation taking the name of Western Maryland Railway Company, which is the appellant in the present proceedings. Thereafter The Western Maryland Railway Company ceased to have a separate existence. Western Maryland Railway Company assumed the obligations both as to principal and interest of the first mortgage 4% bonds, and thereby became liable for the corporate loans tax thereon by virtue of the Act of J uly 15, 1919, P. L. 955, which imposed the tax on bonds assumed, instead of merely, as theretofore on bonds issued,, by the corporation. $11,623,318 of the bonds formed the basis of the resettlements of the Railway Company’s corporate loans taxes by the Department of Revenue which were approved by the Board of Finance and Revenue. By those resettlements appellant’s liability for the taxes for the six years above stated was fixed in an aggregate amount of $462,680.48. Appeals were taken by the Railway Company to the court below which upheld the action of the Board and entered judgments accordingly; however, the court did not allow interest on balances of taxes due prior to the settlement on October 31, 1948, but only from that date. The Railway Company now appeals from the judgments thus entered. In Fidelity-Philadelphia Trust Company Tax Case, 354 Pa. 355, 47 A. 2d 267, we held that bonds owned or possessed by a resident of Pennsylvania and issued by a foreign railroad corporation which thereafter became a component part of an interstate consolidated railroad company pursuant to a consolidation agreement filed in Pennsylvania and in other States, which consolidated company assumed the obligation to pay the interest on such bonds, were not subject to the State personal property tax even though the consolidated company’s treasurer was not a resident of the State. This decision was based on the proposition that a corporation organized by the consolidation of corporations incorporated under the laws of several States was to be regarded as a domestic corporation in each of the States which authorized its existence and was subject to the laws of such State so far as its powers and liabilities therein were concerned. In Commonwealth v. New York, Chicago and St. Louis R. R. Co., 354 Pa. 388, 47 A. 2d 272, we held that such bonds were subject to the corporate loans tax under Section 17 of the Act of June 22, 1935, P. L. 414, as re-enacted and amended by the Act of May 18, 1937, P. L. 633. Those decisions, therefore, as applied to the Western Maryland Rail Road bonds assumed by appellant, conclusively establish its liability for the corporate loans tax thereon. It is true that appellant was not a party in those cases, but it did appear in the Fidelity-Philadelphia Trust Company Tax Case as an amicus curiae, and some of the very bonds here in issue were involved in that appeal. Be that as it may, appellant now presents no persuasive argument to cast doubt on the correctness of those decisions or to deny their applicability to the present controversy. Appellant’s principal contention is based on Section 3 of the Act of March 24, 1865, P. L. 49, which reads as follows: “Upon the making and perfecting the agreement and act of consolidation, . . . the several corporations, parties thereto, shall be deemed and taken to be one corporation, . . . possessing within this commonwealth, all the rights, privileges and franchises, and subject to all the restrictions, disabilities and duties, of each of such corporations, so consolidated.” Appellant argues that Western Maryland Rail Road, Company, which issued the bonds, and its successor The Western Maryland Railway Company, were immune from liability for the taxes here imposed, being foreign corporations with a nonresident treasurer and therefore not subject to the jurisdiction of the Commonwealth of Pennsylvania, and that the “immunity” thus claimed passed to the present appellant in accordance with the provision of the Railway Consolidation Act above quoted. The position thus asserted is obviously untenable. Apart from the fact that the Act of 1865 refers only to “rights, privileges and franchises,” not “immunities,” the Commonwealth of Pennsylvania never granted any immunity or exemption of taxation to Western Maryland Rail Road Company. That Company’s freedom from taxation in Pennsylvania resulted only from the fact that it was a foreign corporation; had it domesticated itself as a Pennsylvania corporation under the Act of June 9, 1881, P. L. 89, such freedom or “immunity” would automatically have disappeared and it would have become subject to all the laws of the Commonwealth and to any and all taxes imposed thereby. By the same token, when it entered into a consolidation for the formation of the present appellant, which thereupon became a domestic corporation of the State of Pennsylvania, any “immunity” that it had enjoyed merely by reason of its having been a corporation under the laws of another State immediately vanished. In short, the fallacy of appellant’s argument is in- its treating Western Maryland Rail Road Company’s freedom from taxation in Pennsylvania as though that Company had been given a specific statutory grant of tax exemption, a right which, it is argued, its successor, The Western Maryland Railway Company, could then have taken into the consolidated corporation under the provisions of the Act of 1865. It would obviously be absurd to hold that, entering the State as a component part of a Pennsylvania corporation, The Western Maryland Railway Company carried with it any “immunity” which it had theretofore enjoyed only because of its being beyond the jurisdiction of Pennsylvania. Indeed, were there any doubt otherwise on the subject, appellant, by assuming the obligation of the bonds, clearly became liable for the corporate loans tax thereon when the Act of July 15, 1919, P. L. 955, was enacted, with the same force and effect as if it had itself issued the bonds as a domestic corporation. The second ground which appellant advances in support of its present appeals is that of estoppel. It appears that when it filed its corporate loans tax report for the year 1919 it did not include these bonds that had been originally issued by Western Maryland Rail Road Company, and no tax was settled thereon. In 1925 a corporate loans tax settlement was made for the year 1921 on a large portion of the bonds, and the Attorney General’s office advised that the Company’s appeal from that settlement should he disposed of by the court. Controversies arose also over the settlements for the years 1925, 1926 and 1927. The Board of Finance and Revenue eliminated the tax from the settlement for the year 1928 and no tax was thereafter imposed on these bonds until 1935. In 1936, as a result of negotiations appellant’s liability for the years 1924 to 1927, inclusive, was compromised by the payment of a comparatively nominal amount, a stipulation so providing was filed in the appeal proceedings which the Company had instituted in the Dauphin County Court, and judgment was entered thereon accordingly. Settlements were made against appellant for the tax on the full amount of the bonds for the years from 1935 to 1939, inclusive, but in 1943 re-settlements for those years were made which excluded these bonds from the loans tax, and, since there was then pending in the Dauphin County Court an appeal on the settlement for the year 1936, a stipulation for judgment eliminating the tax for that year was filed in that proceeding. What appellant thus points out, therefore, is that during the years from 1917 to and including 1939 either compromise agreements were entered into or no taxes at all were imposed by the Commonwealth on these bonds. Appellant claims that by this course ox conduct the Commonwealth is now estopped from imposing the tax for the years beginning with 1940. It will be noted, however, that during all those preceding years there was considerable controversy concerning appellant’s liability and that, in the absence of a court decision, the question necessarily remained inconclusive. But the important point to be noted is that no action whatever was taken by the Commonwealth in regard to the taxes for the years beginning with 1940 either by way of eliminating or compromising them. During those years all negotiations and actions remained in abeyance while the litigation was pending which culminated in the decisions in the Fidelity-Philadelphia Trust Company Tax Case and Commonwealth, v. New York, Chicago and St. Louis R. R. Co. After those cases were decided and it therefore had become judicially determined that the corporate loans tax was properly imposed on bonds of this character the Commonwealth proceeded to settle appellant’s liability for the taxes for the years from 1940 on through 1945, which are the settlements involved in the present appeals. It is therefore clear that the Commonwealth is not attempting to apply those decisions retroactively or to undo anything that took place in the years up to and including 1939 but is merely applying the law as declared by this court to settlements for years which had been left open for that purpose. We find no basis whatever for the contention that the Commonwealth has been estopped by reason of the failure of officials who, acting under a mistaken impression of the applicable law, either did not impose the taxes or compromised them for lesser amounts than were properly due. What has happened is that appellant has escaped, the payment of the corporate loans tax on these bonds for a period of over 20 years, and it should not now be allowed to claim that because of such mistaken indulgence and errors of administrative practice no taxes can be imposed by the Commonwealth for any subsequent years. It is a fundamental legal principle that a State or other sovereignty cannot be estopped by any acts or conduct of its officers or agents in the performance of a governmental as distinguished from a proprietary func tion. No errors or misinformation of officers or agents can estop the government from collecting taxes legally due. However firmly established the rule as to private individuals or corporations that where a person has been induced to act to his detriment by the representations of an agent he can hold the principal on the theory of estoppel, that rule does not apply when a government is the principal. It was said in Easton Bank v. The Commonwealth, 10 Pa. 442, 451, that “the rights of the Commonwealth are not liable to be compromised by the nonfeasance of her agents. Nor can her debtor escape through the mistake of her servants acknowledging a sum less than the whole due, as received in full.” So, in Delaware Division Canal Co. v. The Commonwealth, 50 Pa. 399, 408, it was said: “The second reason for non-liability of this company, viz. that the accounting officers thought so and omitted to charge the tax for the years mentioned, needs but little remark. The mistakes or misapprehensions of these officers could not prejudice the Commonwealth.” In Commonwealth v. Quaker City Cab Co., 287 Pa. 161, 168, 134 A. 404, 407 (reversed on another ground, 277 U. S. 389) it was said: “That for eighteen years after the advent of taxicab companies taxes were not assessed against them under the act in question is an administrative construction favorable to defendant, but cannot prevail against the plain language of the statute. The state cannot be prejudiced by the neglect of its officers to settle and assess a tax.” In Commonwealth v. Taylor’s Executors, 297 Pa. 335, 343, 147 A. 71, 74, it was said: “Defendant’s contention is, in effect, that the letter of the auditor general operated to altogether estop the Commonwealth. No authority is given for this contention and we know of none. As a sovereign state we cannot be thus estopped, . . .” In Cumberland County v. Lemoyne Trust Compwny, 318 Pa. 85, 98, 99, 178 A. 32, 38, it was stated that “ ‘No estoppel in pais can be asserted against the exercise by the State of its taxing power. Accordingly, the State is not estopped to levy 'and collect taxes on particular property by failure to assess it for a number of years, nor can the rights of the State in this respect be forfeited by the laches of its agents; . . .’ 61 C. J. 87, and cases cited. ‘Neither a state nor a municipality is estopped to tax property because of failure for a number of years to exercise such right.’: Cooley on Taxation (4th ed.), page 159.” In Commonwealth v. A. M. Byers Co., 346 Pa. 555, 560, 561, 31 A. 2d 530, 532, it was said: “No administrative officer or body, exercising discretion conferred by the legislature, is vested with the power to abrogate the statute law of the Commonwealth, or to grant to individuals an exemption from the general operation of the law. ... It is well settled that no estoppel can be asserted against the State in the exercise of its taxing power.” And in Federal Deposit Insurance Corporation v. Board of Finance and Revenue, 368 Pa. 463, 472, 84 A. 2d 495, 499, it was declared that “it is the law which is to govern rather than departmental opinions in regard to it.” Appellant urges that, since the only duty of a corporation with respect to the corporate loans tax is to collect it from the bondholders, (Commonwealth ex rel. Baldrige v. Sun Oil Co., 294 Pa. 99, 102, 143 A. 495, 496; Fidelity-Philadelphia Trust Company Tax Case, supra, p. 360, A. p. 271) it should not be held liable for a failure to effect such collections when misled by officers of the Commonwealth into believing that no such duty rested upon it as to these bonds. This contention, however, overlooks the fact that the bonds were issued by Western Maryland Rail Road Company tax-free both as to principal and interest, and that appellant, in assnming the obligation of the bonds, became subject to that covenant. Its status, therefore, is not merely that of a collector of the tax from the bondholders, for it is barred because of such covenant from collecting any tax from them; it owes the tax directly to the Commonwealth, not as a penalty for failing to collect it from the bondholders, but because of its contract obligation with them to pay the tax itself. In Commonwealth v. Harrisburg, 335 Pa. 202, 206, 207, 6 A. 2d 863, 865, 866, it was pointed out that, while ordinarily the corporation is not primarily the debtor for the tax but the agent of the State to collect it, the situation is different where the bonds are issued tax-free; in such case, said the court, “there can be no escape from the conclusion that the [corporation] is liable for the tax, as it has already said in its contract with the one who owes it that he need not pay it but that the [corporation] itself will pay it. . . . We see no escape from the conclusion that the [corporation] must, therefore, account to the state for the tax.” Judgments affirmed. The Department of Revenue and the appellant agreed that the corporate loans tax settlements for the years 1940 to 1945, inclusive, should be based upon the list of Pennsylvania bondholders as of record in 1945 furnished by the appellant. After the appeals for those years were filed, it was stipulated by counsel that, in the event of a decision adverse to the appellant, it should have an opportunity to correct, if possible, inadequacies of information with respect to the ownership list for the year 1945. As a result of that stipulation it is alleged that appellant’s actual liability can be shown not to exceed a total of $378,104.15. Immunity from taxation is not a “franchise” of a' corporation : Morgan v. Louisiana, 93 U. S. 217; Picard v. East Tennessee, Virginia and Georgia, R. R. Co., 130 U. S. 637, 641, 642. However, even a legislative exemption from taxation possessed by one of tbe constituent corporations does not ordinarily pass to tbe consolidated corporation, and especially if tbe consolidation statute does not employ tbe word “immunity” or “exemption,” in tbe absence of which a mere transfer of tbe rights, privileges and franchises of a constituent company will not be sufficient to pass a tax exemption: 13 Am. Jur. 1103, 1104, §1200, and cases there cited; also Chesapeake & Ohio Railway Co. v. Miller, 114 U. S. 176; Picard v. East Tennessee, Virginia and Georgia R. R. Co., 130 U. S. 637; Wilmington (Mid Weldon v. Alsbrook, 146 U. S. 270. Western Maryland Rail Road Company First, Mortgage 4% Bonds matured in 1952.

Tilghman C. J. The plaintiff had a mortgage on a lot of ground, the property of the defendant, oar which was erected a wooden house. The mortgage was regularly acknowledged and recorded, after which the defendant pulled down the wooden building, and erected a brick one. The different mechanics wjho furnished the materials, and did the work, of the brick building, claim a lien on it in preference to the plaintiff’s mortgage, by virtue of the act of the 11th of March 1806. By that act it is enacted, that “ all buildings “ thereafter erected within the city and county of Philadeluphia, shall be subject to the payment of the debts contract- “ ed for or by reason of any work done or materials found “ and provided by any brickmaker, bricklayer &c. &c. before “ any other lien which originated subsequent to the commence-ument of the said building.” At the first reading of this clause, it seems a very plain provision, that the lien of the workmen &c. shall be preferred to mortgages, judgments &c. given by or obtained against the proprietor of the house, after the commencement of the building. But by an argument which appears to me too refined, it is contended that mortgages &c. prior to the commencement of the building, may be said according to the intent of this act, to originate subsequent to the commencement of the building, so far as respects their lien on the building; and the argument is simply this, that it is impossible to have a lien on a thing not in existence, and therefore a mortgage cannot be a lien on a building before it is erected. In answer to this, it is to be considered that a mortgage is a legal conveyance of the land itself, and of course the mortgagee has the legal title as long as the mortgage is in force, to the land and every building erected on the land. It may be asked, and I see not how the question can be answered, at what moment the mortgage began to be a lien on the building, in the sense contended for by the defen(jant. Was it when the building commenced, or during the time that it was carrying on, or not until it was finished? The idea of separating the building from the ground on which it stands, is altogether novel, and cannot be carried into practice without great difficulty. It is -confessed that the land itself remains to the mortgagee, and of course that he may proceed to sell it under the mortgage. But the land cannot be sold without the house. In order to remove this difficulty, it is said that both land and house shall be sold, and the value of each ascertained by arbitrators appointed by the Court. I know not whence the Court derive this power. There is not a word of it in the act of assembly. Thus the obvious meaning of the expressions of the law are rejected, in order to introduce difficulties, which cannot be removed without the assumption of powers, which, to say the least of them, are very doubtful. Besides, this construction may do manifest injustice to the mortgagee, as it does in the case before us. At the time of the mortgage there was a wooden house; this has been pulled down, and the mortgagee has lost the benefit of it. It would be the same if the first building had been of brick instead of wood. In the rapid improvement of this city, we are every day pulling down old brick-buildings, and putting up new ones in their place. In such cases then the mortgagee who had the security of a good house and land, is to rest contented with the land alone; and he is to trust to the decision of arbitrators to fix the value even of that; and all these difficulties and inconveniences are to be resorted to, in order to protect persons, who certainly have been unfortunate, but who have no right to complain, because they undertook the building with full notice of the mortgage. It is far better to follow the plain meaning of the words used in the act, which involves us in no difficulties, and protects all persons who make use of due diligence in searching for liens which existed before the commencement of the building. I will add that the legislature, by mentioning subsequent liens, must have supposed that there might have been prior liens which were to keep their preference. But if a mortgage bearing date before the commencement of the building was not prior, it is not easily to be conceived what could be prior. In fact, the defendant’s argument proves too much, for, if it proves any thing, it must prove, that it was impossible there should be any lien prior to the commencement of the building. I have said more on this subject than I should have thought necessary, had it not been mentioned by the defendant’s counsel, that the construction for which they contend had been sanctioned by the decision of the Courts of Common Pleas, and District Court of this city. We have no report of the cases; perhaps they may have been attended with particular circumstances. ' But there is another question in this cause. Supposing the plaintiff’s mortgage to have the preference, shall it be preferred to the amount of his whole demand? The mortgage appears by an indorsement on it, to have been intended as a security to the plaintiff, for notes drawn or to be drawn by the plaintiff and by Lyle and Newman, in favour of the defendant, and for his use and accommodation, to the amount of 9000 dollars. These notes were to be renewed, from time to time by the plaintiff for twelve months, when they were to be taken up by the defendant with his own funds. By another indorsement on the mortgage, subsequent to the commencement of the brick building, it was agreed between plaintiff and defendant, at the request of the defendant and for his convenience, that instead of Lyle or Lyle and Nexvman being the drawers of all the notes, some of them might be drawn by the defendant and indorsed by the plaintiff or by Lyle and Nexvman, but the whole amount was still limited to 9000 dollars. It is said that this was a departure from the original agreement, and therefore the mortgage lost its force as to all the indorsed notes. I cannot think so. The parties to the mortgage had a right to alter the agreement as they pleased, and so far as they were concerned, there cannot be a particle of doubt. With respect to third persons, the mortgage could not be altered to their prejudice; but I do not consider this as an alteration to their prejudice. It is perfectly immaterial to them, whether notes to the amount of 9000 dollars were drawn or indorsed by James Lyle and Lyle and Newman. The object was to raise 9000 dollars for the defendant on their credit, and this sum would have been raised by drawing, if it had not been done by indorsing. The drawing or indorsing was but the form; the raising of 9000 dollars, and an indemnity to that amount by mortgage, the substance. I am of opinion that the parties had a right to vary this form, without impairing the force of the mortgage, either as it regarded themselves or others. It was opened by the defendant’s counsel, though not much insisted on, that a mortgage intended as an indemnity against' acts to be performed at a subsequent time, ought not to have any effect against third persons. This point was very properly abandoned. There cannot be a more fair, bona fide, and valuable consideration, than the drawing or indorsing of notes at a future period, for the benefit and at the request of the mortgagor; and nothing is more reasonable than the providing a sufficient indemnity beforehand. On all the points which have been made in this case, my opinion is in favour of the plaintiff. Yeates J. I have not a particle of doubt as to the mortgage executed by the defendant to the plaintiff on the 21st of February 1811, duly acknowledged and entered upon record on the 28th of the same month, that it operated as an incumbrance on the lot of ground, and frame house thereon from the time of its execution, according to the true intent and meaning of the parties at that period, although no money was actually paid until after the month of November following. It took effect by way of indemnity, and notes were furnished to the mortgagor, upon a reliance on its security. I have known several instances of mortgages given to indemnify sureties, and never heard their legal operation questioned before on this score. The equity of redemption on the face of the mortgage, rests on the payment of 9000 dollars on demand to Lyle. But by an indorsement thereon signed by all the parties, and bearing equal date therewith, it is stated “ that the “ bond and mortgage recited therein had been given to se- “ cure Lyle and Newman and James Lyle against any in- “ convenience or damage he or they might sustain, by rea- “ son of divers promissory notes already drawn by the said “ Lyle and Newman, and of other notes about to be drawn “ by James Lyle in favour of Ducomb, to the amount of “ 9000 dollars, all of which notes , have been or are about to “ be drawn for the use and accommodation of, and lent to “ Ducomb, and which notes Lyle thereby promised,to renew “ from time to time as they might become due, and so to “ continue to renew the same for the space of twelve ca- “ lendar months from that time, besides the days of grace.” It was further stipulated, that Lyle should not at any time be called upon by Ducomb, to furnish cash to take up or pay all or any part of the said notes, but that the same should be paid and taken up by Ducomb. By another indorsement on the mortgage likewise signed by all the parties, bearing date the 5th of September 1811, it is recited that “ whereas it appeared by the declaration of “ Ducomb, that in some cases it would be most convenient “ for him to have the indorsements of Lyle and Newman and “ of James Lyle on notes drawn by Ducomb, instead of notes “ to be drawn by them or either of them, as was mentioned “in the first agreement, and Lyle and Newman and James “ Lyle were willing so to accommodate Ducomb: It was “ agreed, that the bond within recited, and the within mort- “ gage, should be held not only to indemnify James Lyle “ and Lyle and Newman from such notes of which they “ might be drawers as before mentioned, but also in like “ manner to indemnify them against any inconvenience or damage they or either of them might sustain by reason of “ any indorsements lent or to be lent as abovementioned; “and that the said Lyle and Newman and James Lyle “might have the same advantages and benefits for the reco- “ very of any money they might be compelled to pay as in- “ dorsers, as by the first agreement they might be compelled “to pay as drawers of notes; and that generally the above “ agreement and every thing therein contained, should ex- “ tend to such indorsements as they might give, in as full “ and ample manner as if they had been notes drawn by “ them or either of them.” I have been minute in my extracts from these two agreements. I shall hereafter more particularly consider the light in which I view their influence upon the questions before the Court. In opposition to the claim of the mortgagee to take out of Court the money raised by the sheriff, it has been contended that the mortgage having been given subsequent to the 17th of March 1806, when a law was enacted conferring a lien on dwelling houses and other buildings thereafter to be erected within the city and county of Philadelphia, in favour 'of workmen and material men, must be considered as controlled thereby, as to its general legal operation; that the mortgagee relied for his indemnity on the vacant lot and frame house thereon, and that he ought not to receive the superadded value of the property bv the new brick building, inasmuch as he would thereby materially affect the interests of other persons, and violate the spirit of the law. It was admitted that the lien of the mortgage, if it operated as an incumbrance under all the circumstances of' the case, extended to the ground covered by the new erection; and therefore it had been mutually agreed, that if the Court should be of opinion, that the persons who claimed liens, were intitled to a preference out of the proceeds of the building, persons were to be appointed to ascertain what proportion of the proceeds of sale should be considered as the value of the building, and what proportion thereof should be considered as the value of the lot. Decisions of-the District Court, and of the Court of Common Pleas of this county, were referred to during the argument, from whénce it was said the principles insisted upon might fairly be inferred, but we were not furnished either with the particulars of the cases, or the grounds of decision. I am compelled to acknowledge that the observations of the counsel made a considerable impression on my mind during the argument, but more mature reflection since has effaced them. We are now called upon to construe this law upon general principles, and to declare what effect it ought to have. It makes no distinction between the operation of liens prior or posterior to the passing of the act; and yet it is certain, that if the doctrine contended for is applied to incumbrances done or suffered previous to the t7th aiMarch 1806, it would impair the obligation of a preceding contract. Erections made on lands which have been mortgaged, operate as a further security to the mortgagee, for cujus est solum, ejus est usque ad caelum. It cannot be asserted with any shadow of reason, that, a mortgagee shall be placed at the mercy of a mortgagor; that ;he latter may prostrate what erections are on the ground, and build up others at his sole will and pleasure, which might diminish the security of the former upon a sheriff’s sale, if they are to be paid for out of the proceeds ©f the sheriff’s sale.' The mortgagor might thus cover the whole of a vacant city lot with expensive buildings, and if the mortgagee is eventually compelled to buy it in for his own security, he would be subjected to pay monies out of his own pocket according to the ideal value of those buildings in the estimation of others. Many inconveniences would flow from the principles which have been insisted upon. The law confers on us no power to appoint persons to ascertain the proportional value of the buildings as to the lot, against the will of the mortgagee. It is much better therefore, to adhere to the words of the act of the 17th of March 1806, which are susceptible of a plain and obvious meaning. “ All “ and every dwelling house or other building hereafter con- “ structed and erected within the city and county of Philadelilpkia, shall be subject to the payment of the debts contract- “ ed for or by reason of any work done or materials found “ and provided by any brickmaker &c., before any other lien, which originated subsequent to the commencement of the “ said house or other building.” The mortgage here preceded the building, and must prevail against the claims of the artisans and materialists according to its legal operation, and the true intent and meaning of the parties at the time of its execution, as I have mentioned before. The purposes of the mortgage must be first answered, before the other claimants can be let in. This leads me to inquire into the legitimate extent of the mortgage, as far as it affects those claimants, in which I am so unfortunate as to differ in opinion from my brothers. I will give the reasons of my dissent. I regard the indenture of mortgage, and the indorsement on it bearing equal date therewith, as one act, in the same manner as if they had been incorporated in the same instrument. They show the intention of the parties accurately and precisely defined at the moment. The mortgage was expressly declared to be an indemnity against divers promissory notes drawn by Lyle and Nexvman, and of other notes about Jo be drawn by James Lyle in favour of Dücomb, to the amount of 9000 dollars. To the amount of the notes thus drawn and taken up by them, the mortgage takes effect from the date of the 21st of February 1811, but no further as between the litigant parties. Above six months after, viz. the 5th of September 1811, a new agreement was entered into, whereby it was declared, that the indemnity of the mortgage should extend to indorsed notes in order to meet the wishes of Ducomb, and to suit his convenience. If it is possible to doubt what was intended by the first agreement, these doubts would be removed by the inspection of the second indorsement; wherein it is declared that the mortgage should be held, not only to indemnify James Lyle and Lyle and Newman against such notes of which they might be drawers, but also against their indorsements of notes drawn by Ducomb himself. Previously thereto, the building of the house commenced, and the liens of the workmen and materialists attached under the law, subject however to the priority of the mortgage, according to its legal effect and the contract of the parties. If the terms were changed by the second contract, as I think clearly they were, for the reasons I have given, was it competent to the parties to make this alteration to the.injury of intervening creditors by a statutable lien? This then is the question. It has been urged on the part of the mortgagee, that the spirit of the contract was an indemnity against notes lent or indorsed for the accommodation of Ducomb; and that third persons have no right to object that the notes were indorsed by James Lyle or Lyle and Newman, instead of being drawn, by them or either of them. The same substantial benefit was conferred on Ducomb in either mode. True: as between the original parties, the whole transaction is perfectly right and fair. But how far it should affect third persons, now becomes the point of inquiry. That the mortgage was meant as an indemnity, there can be no question; but it must be limited and governed by the agreement of the parties. To warrant a recovery upon it, there must have-been a damnification within the precise terms of the contract. If those original terms have been enlarged to the injury of other lien creditors, those creditors have a right to make objections. I will exemplify my system of reasoning by putting a few instances. It would be of no moment to a mortgagor, whether the consideration money of the mortgage was grounded on the delivery to him of meal or of malt, or of his individual debts due to other persons for such articles advanced and paid by the mortgagee. But if a mortgage is given to indemnify a person against an advancement of money for debts due for meal, it will not be construed an indemnity to the mortgagee for monies paid by him for debts due for malt. So in the principal case, if James Lyle or Lyle and Newman had purchased in the notes of Ducomb, or had given him bonds instead of notes, I should hold the gage could not take effect as an indemnity in such cases to the injury of other lien creditors, so as to squeeze them out. The present is a struggle between two classes of creditors, whom I will suppose to be equally meritorious; their several legal rights should prevail. Upon the whole matter I am of opinion, that the plaintiff is, intitled to a preference as to receiving the proceeds of sales to the amount of the notes drawn by himself or by Lyle and Newman, and taken up by them in pursuance of the mortgage, but no further. Brackenridge J. concurred with the Chief Justice. Judgment that the money be paid to the plaintiff.

Opinion by Mr. Justice Benjamin R. Jones, On November 10, 1961, the Pennsylvania Labor Relations Board (State Board) held a hearing on a petition filed with it by Retail Clerks Union, Local 1436 (Union) requesting a secret ballot to determine whether the Union should be the exclusive bargaining agent for an employee unit composed of the installation and service personnel of Modern Home Appliance Co. (Employer) of Chambersburg, Pa. The State Board granted the petition, conducted the election and a majority of the employees, (i.e., those employees recognized by the Board as eligible to be members of the bargaining unit) voted in favor of representation by the Union. Subsequently, the State Board entered a nisi order certifying the Union as the exclusive representative of the unit and this order was made final on January 28, 1962. The Employer made timely appeal to the Court of Common Pleas of Franklin County (court). The court ordered, inter alia, that “all decisions and orders of the Pennsylvania Labor Relations Board, or the enforcement thereof, heretofore made in this matter [be] stayed” pending hearing of the appeal. During the pendency of that appeal, the Union filed with the State Board a complaint of discrimination and refusal to bargain collectively against the Employer. The State Board ordered a hearing on this complaint and the Employer then sought and obtained from the court a rule to show cause why a writ of prohibition should not issue prohibiting the State Board from entertaining the complaint. The court heard argument both on issuance of the writ of prohibition and on the merits of the appeal and handed down two orders; the first order confirmed the issuance of the writ of prohibition and the second order set aside the State Board’s order of certification. Prom each order, the State Board now appeals. The Writ of Prohibition The issuance of a writ of prohibition is not within the powers of a court of common pleas of this Commonwealth. This Court reviewed the historical background of the writ of prohibition in Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 61 A. 2d 426, noting that it was an extremely ancient writ which issued originally out of King's Bench but later out of Chancery, Exchequer and Common Pleas, that is, out of the High Courts of Westminster. Section XIII of the Act of May 22, 1722, 1 Sm. P.L. 131, establishing a Supreme Court and "County Courts of Common Pleas" for Pennsylvania, invested the Supreme Court with all the powers of the Justices of King's Bench, Common Pleas and Exchequer "at Westminster". Section XXI of that Act gave the courts of common pleas general original jurisdiction within their counties but omitted any reference to the powers of the High Court Justices at Westminster. Alone of English judicial tribunals, the High Courts of Westminster had the power to issue the great prerogative writs of prohibition, certiorari, mandamus and quo warranto. These writs, unlike other writs, were not mere formal judicial tools but rather weapons wielded by the judicial arm of the Crown to curb ecclesiastical and baronial encroachments and, as such, they were, as a matter of policy, used but sparingly and only when no other remedy savoring less of monarchial arbitrariness was available. Later Constitutions and statutes of Pennsylvania since 1722 have made the prerogative writs available to our courts of common pleas with the exception of proh ibition. The only court of this Commonwealth, other than this Court, authorized to issue the writ of prohibition is the Superior Court but even that Court can issue the writ only to the extent that an action in prohibition is ancillary to proceedings within that Court’s appellate jurisdiction: Act of May 21, 1941, P. L. 47, 17 PS §181. While it has been held that the Act of 1836, June 16, P.L. 784, 17 P.S. § 281, conferred upon the courts of common pleas the powers of the English Court of Chancery (Kneedler v. Lane, 3 Grant Cas. 465), it is equally true that in Pennsylvania no court has the full powers of the English Chancellor and such equitable jurisdiction as exists in this Commonwealth is confined to the enumerated powers in equity to be found in the Act of 1836 and succeeding statutes: Alpern v. Coe, 352 Pa. 208, 42 A. 2d 542, 161 A.L.R. 1046. Our research fails to disclose any authority for the issuance of the writ of prohibition under the chancery powers of common pleas courts. By its nature, the writ controls the distribution and allocation of judicial jurisdiction among the various constitutional and statutory judicial tribunals. To hold that a court of common pleas has a common law power to issue the writ would lead in logic to the absurd result that such a court could challenge the jurisdiction of this Court to hear ah appeal taken from common pleas. Precisely that absurdity was attained in England when the four High Courts used the writ against each other in their undignified scrambles for jurisdiction, culminating in Lord Chief Justice Coke’s temerarious and disruptive use of the writ in his impassioned defence of the common law courts in the reign of James I. Bearing this history of the writ in mind, it is implausible to surmise that the withholding of the power to issue the writ of prohibition from inferior tribunals in this Commonwealth was the result of any legislative oversight. The court below relied on the authority of Alberts v. Bradley, 11 Pa. D. & C. 2d 107, 111, Carpentertown Coal & Coke Co. v. Laird, supra, and First Congressional District Election, 295 Pa. 1, 13, 144 A. 735. In First Congressional District Election, the writ issued from this Court to prohibit certain actions of a common pleas judge sitting in a quasi-judicial capacity as a computer of election tallies: under the circumstances, anything said on the subject of common pleas powers to issue prohibition would have been obiter and, in any event, the ease stands for no more than the proposition that the writ does issue from this Court to a quasi-judicial tribunal. In Carpentertown, the very power of this Court to issue the writ was challenged. In Alberts there is dicta squarely in point based on the authority of Carpentertown. A careful reading of Carpentertown convinces us that the court in Alberts erred in equating the powers of our courts of common pleas with those of their more formidable namesake in England. In Pennsylvania, courts of common pleas lack the authority to issue a writ of prohibition and, in issuing such writ in the case at bar, the court below erred. The Merits of the Appeal The State Board and the Employer are in substantial agreement that the questions at issue are (a) whether the State Board had jurisdiction; (b) whether the State Board’s determination of the appropriate bargaining unit was unreasonable, arbitrary or illegal. The State Board, in its brief, recognizes that Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S. Ct. 598, and its companion cases, Amalgamated Meat Cutters and Butcher Workmen of America, etc. v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S. Ct. 604 and San Diego Building Trades Council v. Garmon, 353 U.S. 26, 77 S. Ct. 607, abolished "the theory of concurrent jurisdiction and the practice of State Courts and Boards `taking' jurisdiction in areas where the National Board refused to act because of budgetary considerations or otherwise." The Labor Management Reporting and Disclosure Act of 1959, infra, commonly called the Landrum Griffin Act, then attempted to remedy the situation thus created, i.e., where the National Board declined to act and the State Board lacked jurisdiction to act, by providing that: “(1) the [National] Board, in its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction: Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959. “(2) Nothing in this Act shall be deemed to prevent or bar any agency or the courts of any State . . . from assuming and asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.” : Act of Congress of September 14, 1959, P. L. 86- 257, Title VII, §701 (a), 73 Stat. 541 (29 U.S.C.A. §164(c) (2)). (Emphasis supplied) The State Board contends that the effect of that Act is to withdraw federal preemption and to permit state boards and courts to exercise their jurisdiction oyer an employer whose business affects interstate commerce when the National Board, by rule of decision or by published rules, declines to assert jurisdiction and that, viewed in the light of standards set forth by the National Board in previous decisions where it had declined to act, the National Board would decline jurisdiction in the case at bar. Howbeit, in the case at bar the State Board did not make any determination whether the Employer’s “nonretail” operations of its business were such as to bring into play the standards of the National Board said to be applicable, but simply stated that it was obvious from the record that this Employer’s wholesale business was not really “non-retail” business at all and, in any event, the Employer did only a “minimal” amount of “honretail” business. As a practical matter, however, the State Board did not rest its assertion of jurisdiction upon this line of argument. Upon receipt of a letter from the Regional Director (Director) of the National Board in Pittsburgh, the State Board “found it unnecessary to make a determination as to the nonretail status of this Employer” and then proceeded to assume and assert jurisdiction upon the basis of this letter as well as a letter from the Director to the Employer. The Director’s letter to the State Board advised that the petition filed by the Union with the National Board in this same matter “was withdrawn because as a result of investigation it appeared that it would not effectuate the purpose of our [National] Act to exercise jurisdiction therein.” The Director’s letter to the Employer advised that this petition had been withdrawn “with my approval”. On this posture of the record, we must determine initially whether the letters of the Director are evidence of a “rule of decision” declining jurisdiction within the meaning of the provisions of Landrum-Griffin, supra. Fortunately, since we interpret a federal statute, we may look behind the printed word of the statute to ascertain, if possible, the Congressional intent where we find, as here, that the language of the statute is not crystal clear (Phelps-Dodge Corporation v. NLRB, 313 U. S. 177, 61 S. Ct. 845), and especially where the statute contains matters of great national moment imposing upon us the duty of so interpreting the statute as best to effectuate the policies of the act: Ibid. The Landrum-Griffin Act was not reported upon by a committee of the House or Senate but was introduced (late in the session) and passed without change in the House and survived the House-Senate conference with but slight changes. However, the quoted provisions did receive attention in the conference. Where the Senate Bill stipulated that the National Board could decline jurisdiction by “rule or otherwise”, the Landrum-Griffin wording calling for such a determination “by rule of decision or by published rules” prevailed. On the other hand, the proviso to subsection (1), supra, limiting the National Board’s power of declination to pre-1959 standards, was inserted as a result of the conference. Mr. Griffin’s introduction of the bill in the House provides—since there was almost no floor debate prior to its passage in the House—the only authoritative statement of the intent underlying the sections we now construe. He stated: “It should be noted that both the Committee [N.R. 8342] and the [prior Senate bill] ignore the fact that, until the Guss decision was handed down, state boards and state courts could, and did, accept jurisdiction over cases which the National Board declined to handle. The substitute bill [the LandrumGriffin] would eliminate the no-man’s land by restoring the situation substantially to what it was before the preemption doctrine was carried to the point reflected in the Guss and Fairlawn decisions. ' In rejecting the totally federal approach of the committee bill, and the ‘slightly less federal’ approach of the Senate bill, this bill in Section 701(a) would ratify the authority of the Federal Board to decline jurisdiction over cases where the effect on commerce is insubstantial. It would permit the Board to do this either by rule of decision or by published rules. Subsection (2) would then vest State boards and State Courts . . . with authority to exercise jurisdiction over such classes of cases as the Board has declined or would decline.” As this quotation indicates, Congressional debate on the “no-man’s land” issue centered on whether the National Board would be compelled to take all cases within its potential jurisdiction or whether the pre-Guss situation would be restored and no member of the Congress was heard to advocate the continued existence of the “no-man’s land.” The statute clearly reveals the intent of the Congress: the “no-man’s land” was to be eliminated by granting to the National Board the authority to decline jurisdiction and, in such event, authorizing the state agencies to assert their jurisdiction. In effect, the impact of Guss was nullified. How then is such declination of jurisdiction by the National Board to be evidenced? When we note that the House-Senate conference rejected the statutory wording “by rule or otherwise”, it is obvious that the Congress imported that a declination of jurisdiction would be attended by some formality and that the Congress rejected statutory wording which would have authorized an informal declination. On the other hand, we cannot assume that those who sought to escape from “no-man’s land” could do so only at the expense of protracted procedure or litigation but we must assume that the Congress meant precisely what it said when it left the question of the declination of jurisdiction to the National Board’s pre-1959 standard-guided discretion and that such formal procedures as might be authorized under the federal act, or regulations made pursuant thereto, would suffice as a “rule of decision” or “published rules” declining jurisdiction. In the case at bar, did the Director’s letter to the State Board constitute a declination of jurisdiction by the National Board by “rule of decision” within the statutory purview? The letter to the State Board is brief and that to the Employer more so. The letter to the State Board states that the petition filed by the Union with the Director in this same labor matter was withdrawn because, after investigation, it appeared that it would not effectuate the purpose of the national act to exercise the National Board’s jurisdiction while the letter to the Employer states that this petition was withdrawn with the approval of the Director. On the surface, it might appear that the Employer is correct in contending that these letters simply mean that the Union had withdrawn its petition and that such action of withdrawal did not equate a declination of jurisdiction by the National Board such as would authorize the State Board to assert its jurisdiction. However, the letters must be interpreted in the light of the national act and the regulations enacted pursuant thereto and viewed in such light it becomes evident that the withdrawal of a representation petition is not a perfunctory act but the result of deliberate and considered action by those acting for the National Board in passing upon the right to withdraw such petition. In the letter of the Director to the State Board, the Director specifically assigns the reason for the withdrawal of the Union’s petition, i.e., that the policies of the national act—which the Director was bound to administer—would not be effectuated by the exercise of jurisdiction by the National Board. The language of the letter is subject to no other interpretation than that jurisdiction was declined for a fundamental, rather than an administrative, reason and that the subject matter of the petition did not sufficiently affect interstate commerce as to warrant the exercise of jurisdiction by the National Board. In our view, this letter, together with the letter indicating that the Director had consented to the withdrawal, constituted a sufficient declination of jurisdiction by the National Board to justify the State Board in assuming and asserting jurisdiction over the matter under the provisions of Landrum-Griffin, supra. The contention of the Employer that, assuming the regulations of the National Board empower the Director to consent to the withdrawal of a representation petition, such regulations are ultra vires being an unauthorized delegation of the powers and functions of the National Board is without merit. Section 701(b) of Landrum-Griffin, supra, authorizes the National Board to , delegate to its regional directors its powers in representation proceedings, the avowed purpose of such authorization being to enable the National Board to more effectively exercise its jurisdiction by freeing it from having to determine every preliminary matter. Though the power to decline jurisdiction is not specifically mentioned, it is implicit in the powers delegated as even a cursory examination of the powers specifically delegated under Section 9 indicate. Furthermore, the Employer’s contention that an ex parte declination of jurisdiction constitutes a violation of due process is meritless. The regulations of the National Board provide elaborate procedures whereby the Employer may test the views of a Director as to jurisdiction by petitioning the National Board for an opinion as to whether the National Board would assert jurisdiction on the basis of its current standards. The Employer has submitted authorities from other states which hold that a full dress opinion by the National Board, after hearing, can constitute a declination of jurisdiction within the meaning of Landrum-Griffin; with such authorities our instant determination is not inconsistent. In the case at bar, the decisional point is that, in a representation proceeding, the Director has all the powers of the National Board and his consent to a withdrawal of a representation petition upon the basis of the stated reason that the exercise of jurisdiction by the National Board would not effectuate the policies of the national act constitutes a sufficient declination of jurisdiction to permit the State Board to assume jurisdiction. The court below held that the Director’s letters did not constitute a declination of jurisdiction because the National Board itself, rather than a Director, must make such determination. With that holding we do not agree. The National Board, with statutory authority, properly delegated to the Director its authority to decline jurisdiction and, the Director having made a final determination in accordance with proper procedure, the federal jurisdiction over the instant labor matter was suspended. If the Congress had intended that any further formalities attend a declination to act by the National Board it would have said so. Not having said so, the State Board is not put on enquiry when it receives notice of declination in fact from an officer of the National Board who has apparent authority to act for that Board and who did in fact approve the withdrawal of the petition presented to the National Board. It is difficult to imagine how much more evidence of declination to act the State should require before assuming jurisdiction over the labor dispute thus abandoned. Under the circumstances, the State Board very properly assumed and asserted jurisdiction in this matter. The Employer also contends that, in determining the composition of the bargaining unit, the State Board acted unreasonably, arbitrarily or illegally in excluding certain employees from the unit and that such exclusion was not supported by legally credible.evidence. The Employer argues that the conclusions of the State Board, if they are supportable at all, must be solely founded on the testimony of the one employee who testified for the Union and that, of the 70 questions asked of this witness on direct examination, 30 questions were leading questions and, hence, the testimony of that witness was legally incredible. Section 7(b), of the Pennsylvania Labor Relations Act, supra, (43 PS §211.7) provides, inter alia: “the board shall decide in each case whether . . . the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. . . .” In this respect, our Act and the National Act are practically identical and under both Acts the determination of an appropriate unit' for collective bargaining is one for the expert judgment of the labor board. After referring to Section 7(b) of the Pennsylvania Labor Relations Act, the court below correctly stated: “It is not the duty of a court on review to substitute its judgment concerning wliat is the appropriate bargaining unit for that of the Board, but only to determine whether the evidence in support of the Board’s decision is substantial and legally credible, and whether the Board’s conclusions are unreasonable, arbitrary or illegal [citing cases].” A reviewing court is always hesitant to upset the factual findings of a jury or even of a judge sitting without a jury because of the difficulty of ascertaining from the bare words of the record the nuances that might well overturn any credit that might be given to the spoken word. Such is particularly true in the review of findings of administrative tribunals, where the law has entrusted the ascertainment of the facts to persons presumably selected for their experience and expertise who are, as Justice (now Chief Justice) Bell pointed out in Delaware County National Bank v. Campbell, 378 Pa. 311, 328, 106 A. 2d 416, better qualified than any court to make a factual finding on a subject within their field. In the labor field, particularly in small concerns, it is a very difficult task to determine which of the employees are in need of the protection of collective bargaining and which of them have attained a position which would indicate that forcing them into a bargaining unit would be detrimental rather than beneficial to the success of the bargaining process. In the instant case, the State Board had to determine which of the employees were primarily salesmen and which were primarily service and installation personnel, though the evidence tended to show that all the employees had some sales, service and installation functions. To employ a sociological term, the Board had to determine the “pecking” order and to discover the “pecked” rather than the “peckers”. In substitut ing its own version of the facts for those of the State Board, the court below exceeded its reviewing function and, in so doing, erred. The Employer contends that there was no evidence to support the conclusions and findings of the Board in that the testimony produced by the Union was a nullity since it was, allegedly, elicited by means of leading questions put to the one witness who testified for the Union. That being so, argues the Employer, the State Board was bound by the testimony produced by the Employer, there being no “legally credible” evidence to contradict it. Aside from the fact that no test is set forth for the quality of the evidence at a representation hearing under Section 7(b), supra, of the Pennsylvania Labor Relations Act, unlike the injunction that judicial rules of evidence be followed in an unfair labor practice hearing under Section 8(b) (43 PS §211.8) of the Act, we are of the view that the argument of the Employer is not supported by the record. While evidence elicited by means of leading questions is a form of hearsay it does not follow that words “put in the witness’ mouth” are necessarily untrue. The record reveals that 30 of the 70 questions put to the witness by the Union’s business agent were leading, yet both the hearing examiner and the Employer’s counsel subsequent to the allegedly improper questions questioned this witness on the subject matter elicited by the leading questions and such questions did not affect the substance of the direct evidence. We cannot state, upon this record, that the Union’s testimony was not legally credible. If credible, such testimony was more than a “mere scintilla” and of sufficient substance to support the conclusion of the State Board. There was evidence, therefore, on which the State Board could have made the determination that it did;' in such a case, this Court has said, time and again, that it will not lightly substitute its judgment for that of a body selected for its expertise whose experience and expertise make it better qualified than a court of law to weigh facts within its field. The court below should not have attempted to substitute its judgment for that of the State Board as to the composition of the appropriate bargaining unit. Orders of the court below are reversed. Costs on Employer. As provided in Section 9(b) of the Act of June 1, 1937, P. L. 1168, 43 PS §211.9, commonly called the Pennsylvania Labor Relations Act (Act), See: Pollock and Maitland, History of English Law before Edward I. These three eases were decided on the rationale that, in enacting the National Management Labor Relations Act (29 U.S.C.A. §141 et seq.), Congress meant to reach the full extent of its power under the commerce clause of the U. S. Constitution and that the proviso to Section 10(a), U.S.C.A. §160(a) Implied exclusive jurisdiction over the field of labor relations in the National Labor Board. In making these decisions, the Supreme Court was aware that there would be created “a vast no-man’s land, subject to regulation by no agency or court” in the labor field and that it was not material that Congress had made it impossible for the National Board to exercise the jurisdiction so granted by withholding the necessary funds for implementation of its powers. Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1522(2) (U.S. Government Printing Office 1959). Subsections (1), (2), supra. It is of no moment that the decision of the Director was communicated in the form of a letter; it is sufficient that it was a communication in writing. Since neither the statute, nor the regulations thereunder, prescribe any formalities for the communication of the decision of declination, we forbear to invent one. Our research reveals that the language employed is probably a formula used by all Directors. See: Hirsch v. McCullough, 303 F. 2d 208, for virtually the same wording in .the letters therein quoted. A representation petition filed under the national act is a formal proceeding made upon the basis of sworn information (29 U.S.C.A. App. §102.60). On receipt of such a petition the regional office of the National Board conducts an investigation which checks the justifiability of further action by the National Board (29 U.S.C.A. App. §101.17). If, for any reason, the investigation convinces the Director that further action is not warranted, the petitioner is invited to withdraw the petition or his petition will be dismissed. If the petition is dismissed, the petitioner—but apparently no other party—may appeal to the National Board within 10 days (29 U.S.C.A. App. §§101.18, 102.71). Prior to a hearing directed by the Director, Section 102.60 (29 U.S.C.A. App. §102.60) states that “the petition may be withdrawn only with the consent of the regional director” and, after the close of a hearing, the consent of the National Board to a withdrawal is required, further emphasizing the essentially euphemistic character of the word “withdraw” as used by the Director in the case at bar. The section numbers of 29 U.S.C.A. Appendix correspond with those of the NLRB Rules and Regulations, Series 8, in effect at the time the Director’s letters were written. It must also be noted that the Employer, if it really was “in doubt” as to the tribunal having jurisdiction, could have, once this matter was before the State Board, petitioned the National Board for an advisory opinion “on whether it would assert jurisdiction on the basis of its current standards”: Section 102.98 et seq. (29 U.S.C.A. App. §102.98 et seq.). Had the Employer done so, the Director’s approval of the withdrawal of this petition could have been tested administratively. Until the Employer so acted and the National Board’s advisory opinion given to the contrary, the determination of the Director is the final determination of the National Board’s jurisdiction. 29 U.S.C.A. §153 (b). 29 U.S.C.A. §159(b), (e). 29 U.S.C.A. App. 102.98 to 102.104; 29 C.F.R. §102.98 to §102.104. Luquesne Light Company Case, 345 Pa. 458, 29 A. 2d 18; Packard Motor Car Co. v. NLRB, 330 U.S. 485; NLRB v. Atkins & Co., 331 U.S. 398; NLRB v. Hearst Publications, Inc., 322 U.S. 111; PLRB v. Henry, 361 Pa. 565, 64 A. 2d 764; Chapin v. PLRB, 356 Pa. 577, 52 A. 2d 568. See: Universal Camera Corporation v. NLRB, 340 U.S. 474, 71 S. Ct. 456.

The opinion of the court was delivered by Huston, J. The plaintiff in error was plaintiff below, and brought this suit to recover damages from the borough of Reading, for filling clay and gravel in one of the streets of that borough, opposite the dwelling house of the plaintiff. None of the facts or of the testimony was brought up; and we have the naked question, whether in one of our boroughs, where by the act of incorporation the power of improving and repairing the streets is given to the corporate officers, they can fill up a hollow place or dig down a hill which is too steep for convenient use. By an act of assembly passed the 29th of March 1813, concerning the borough of Reading, among other powers given to the corporation in the 6th section, they are empowered “to make such ordinances as by a majority shall be deemed necessary to promote the peace, good order, benefit and advantage of said borough, particularly providing for the regulation of the markets; improving, repairing, cleansing and keeping in order the streets, lanes, alleys and highways of said borough; 'for making ditches, drains and sewers, to dispose of and cany off the water of said borough.” In the language of the president of the common pleas, “the law confers th„e power to improve the streets: this involves that which was done by the defendants. In the improvement of streets, it is often necessary to cut down some places and to fill-up others. No town (except one on a nearly level site) could be improved unless the streets could be thus graded.” There was not, as appears from the opinion of the court, any allegation of malice, or even of wanton disregard of private right; it also appears that it was done in pursuance of a regulation, made some time since, and which has been carried into effect in different parts of the borough. Every man sees when he purchases or builds, whether his lot is on high or low ground, whether the street is level or steep opposite to his property : and he is bound to know, that every highway or street may by law, be made more convenient for public use, than it was in a state of nature. That hills may be cut down, and low or swampy places raised; that if one side of the road or street is higher than the other, it may be made level from side to side, though in doing this, a house on one side may be left somewhat more above the level than could be wished, and on the other somewhat below it. Although this power has not, so far as we know, been controverted in this state, yet it seems to have undergone judicial decision in other places. It came before the court of King’s Bench in 4 Term Rep. 794, and was decided in favor of those who raised the road. It again appeared in the common pleas, Sutton v. Clarke, 6 Taunt. 29, where it was decided on the point, that defendant was acting under the authority of an act of parliament, deriving no emolument to himself personally, and acting to the best of his skill, and within the scope of his authority and so not liable for consequential damage; this case, says C. J. Gibbs, is totally unlike that of an indvidual, who, for his own benefit, makes an improvement on his own land according to his best skill and diligence, not foreseeing it will produce injury to his neighbour; if he thereby though unwillingly injure his neighbour, he is liable. The resemblance fails in this most important point, that his act is not done for a public purpose, but for private emolument; here' the defendant executes a duty imposed on him by the legislature, which he is bound to execute. The matter did not rest here, it came again before the King’s Bench, 2 Barn. & Cres. 703. An act of parliament had authorized certain persons to make, alter and improve a road. The court observed that digging down and filling up, were the most ordinary and most effectual way of improving roads; the case in 4 Term Rep. 794, is cited and approved, as also Sutton v. Clarke, and it is laid down, that if those appointed by law to make or improve a road act within their jurisdiction, and with their best skill, they are not answerable for consequential damages; that they may be answerable if they act arbitrarily, carelessly or oppressively: and this disposes of the case in 3 Wils. 461, where for so acting they were held liable; and also of 4 Ohio Rep. 500, where it was said to be done oppressively and maliciously. There is also a case in 7 Peters 443. The supreme court of the United States decided that they had not jurisdiction, but the case was an action against the city of Baltimore, for damages consequent on certain improvements of the streets, and in the city court damages were recovered, but on a writ of error this was reversed in the court of the last resort in Maryland, and they refused to grant a venire de novo, because no action lay. In the commencement of the opinion of Chief Justice Gibson, in 3 Penn. Rep. 259, where the point was not precisely the same as here, yet he recognizes the power of improving and making safe and convenient the streets, and it is treated as a power incident to every incorporated borough or city. If I am not mistaken in my recollection, the same matter has been decided in the same way in Massachusetts. On authority, then, and on principle, the decision of the common pleas was right, and I suspect though there may be a temporary inconvenience, the plaintiff will find he has not been injured ; no one thing which can be effected by man, tends more to increase the growth and prosperity of a town or city than good streets. The advantage to the whole town soon raises property in every part of it, and is to the advantage of every inhabitant. Judgment affirmed.

The opinion of the court was delivered, by Thompson, C. J. The complainant in this case is the owner of a dwelling-house and cotton factory in the village of Phoenix- ville, Chester county; and the respondents are owners of very extensive iron works in the same village. The former complains that by reason of the kind of fuel used by the latter in their works, his residence is rendered uncomfortable and unwholesome, and his factory materially injured in the discoloration of his fabrics and deterioration of his machinery. Claiming that he had established this, he asked the court below for a perpetual injunction to restrain the respondents from using the fuel, bituminous and semi-bituminous coal complained of as the cause of the injury to his property in these furnaces. The case was heard on bill and answer, and the court decided against him. He was then permitted to file a replication and take testimony, on which there is a report of a master also against him. The court having sustained the report, again refused to enjoin the defendants, and the cáse is before us on an appeal, and we are asked to do what the court below refused, namely, perpetually to restrain the defendants from using bituminous or semi-bituminous coal in their furnaces. The defendants’ works are very extensive, amongst the most so, it is said, of any of the kind in the Commonwealth, consisting of several blast furnaces, some seventy puddling furnaces, and rolling-mills and other machinery. They began on a small scale some forty-nine or fifty years ago, and up to 1840 used bituminous coal exclusively. The original works were not precisely on the spot of those complained of, but so near it as to entitle the latter to be regarded as an extension of the former. The extensions made in the works in 1837, 1846 and 1853, constitute the present works, the cost of which alone is represented as exceeding half a million of dollars, and which at the time of taking the testimony, and previously, employed, as the master reports, from eight hundred to one thousand hands. The plaintiff’s dwelling, it appears, is situated on a bluff or hill northwardly from the defendants’ works, about seventy feet above the nearest furnace floor, which brings its first story about on a level with the top of the puddling-stacks, and when the wind is towards t'he plaintiff’s house and from the furnace, the consequence is, that it is at times enveloped in a coal-smoke thrown out of the chimneys of the puddling furnaces. It cannot be doubted, I think, that this materially operates to injure the dwelling-house as a dwelling, and consequently to deteriorate its value. The alleged injury to the factory is mainly that the smoke and soot of the furnace blackens the stock and renders the fabrics less saleable. This I can readily understand and believe. The house was erected in 1829, and the factory in 18-34, and both have been generally occupied ever since; the factory not doing full work for some time past, as the master reports. A careful consideration of the testimony satisfies us that the use of semi-bituminous coal, the fuel complained of, is necessary to the successful manufacture of iron fit for axles, cannon and the like, in the manufacture of which the defendants are largely engaged; that the process of manufacture, and fuel used, are generally employed in similar establishments, and that there was neither a negligent nor wilful infliction of injury upon the plaintiff or his property in the defendants’ mode of operating their works. Whatever of injury may have, or shall result to, his property from the defendants’ works, by reason of the nuisance complained of, is such only as is incident to a lawful business*conducted in the ordinary way, and by no unusual means. • Still there may be injury to the plaintiff; but this of itself may not entitle him to the remedy he seeks. It may not, if ever so clearly established, be a case in which equity ought to enjoin the defendants in the use of a material necessary to the successful production of an article of such prime necessity as good iron; especially if it be very certain that a greater injury would ensue by enjoining than would result from a refusal to enjoin. If we were able with certainty to say that the use of semi-bituminous coal, in the process of making good iron by the puddling process, was unnecessary, and other fuel was equally good and available, or that by a reasonable expenditure of money on the works, all injury might be avoided, a different case might appear to our minds as chancellors, and we might then say that the cause of injury should cease, and that a decree in terms to meet such a contingency should be made so as to prevent the injury. But we have not such case before us. Bituminous, or at least semi-bituminous coal, we think, from the testimony, is necessary in the manufacture of iron, such as the business of the defendants require, and whose fabrics the public require. Nor are we shown by testimony or reliable tests of any kind, that the smoke produced in the puddling process can be consumed, as it undoubtedly may be in ordinary chimneys, or when produced in furnaces used to propel machinery. I am personally cognisant that this may be done, from observation both in this country and in England; and I have therefore read with satisfaction and entire conviction of the truth, the article from the London Quarterly of 1866, so largely quoted by the learned counsel for the appellants; but I would be very unwilling to act on that conviction or that theory any further than to the extent to which experiment has gone. I would require very clear proof of the practicability of the application of the principle to uses dissimilar, or partially so, as puddling chimneys from common furnace smoke-stacks. The defendants seem willing to test the applicability of smoke consumers to puddling furnaces, and at the same time express their doubts in a practical shape by offering $50,000 for an invention which will consume the smoke of their puddling stacks without impairing the efficiency of the process of manufacturing iron. However this may be, certain it is, we are not able to say from anything shown, that the evil complained of can be remedied by the application of smoke consumers. We do not know what effect their application might have on the process; nor do we think we should visit the defendants, because they might be unwilling to add to the height of their chimneys without knowing what effect it would have, or because they might not be willing to tear down their establishment and re-erect it on Seiman’s plan or patent. What effect these remedies, or either of them, ought to have on the mind of a chancellor, if feasible, and the injury complained of were absolutely irreparable, we are not called upon to say, for such is evidently not the case here if there be any damage at all, as we shall presently show. The rule on this subject is well stated in Grey v. The Ohio and Pennsylvania Railroad Co., 1 Grant 412, thus: “ Where damages will compensate either the benefits derived or the loss suffered from a nuisance, equity will not interfere.” See also Hilliard on Injunc. 271; Adams’ Eq. 485; Fonblanque’s Eq. 51; 2 Story’s Eq. § 925, et seq.; Eden on Injunc. 269. In Coe v. Lake, 37 N. H. 254, it was said, where the bill prayed an injunction to suppress a nuisance to the plaintiff’s land, it might be dismissed on general demurrer for want of equity, unless it appeared from the subject-matter affected by the alleged nuisance that there was danger of irreparable mischief, or' of an injury such as could not be adequately compensated in a suit at law. These, and many other authorities to the same effect, some of which are on the paper-book of the appellees, prove conclusively that, as a general rule, mischief or damage is not irreparable which is susceptible of being compensated in damages. We have no doubt that an action at law will lie for an injury to property for causes similar to those mentioned in this bill, and if so, why will not the remedy be adequate in such case, and thus the injury be repaired in damages ? We are not to presume that it will not be. This would be to impugn the justice of our common-law forms without a reason. We think, under the circumstances of the case, that the injunction ought to be refused, and the plaintiff left to his action at law for the recovery of such damages as he may have sustained or may sustain. An error seems somewhat prevalent in portions, at least, of this Commonwealth, in regard to proceedings in equity to restrain the commission of nuisances. It seems to be supposed that, as at law, whenever a case is made out of wrongful acts on the one side and consequent injury on the other, a decree to restrain the act complained of, must as certainly follow, as a judgment would follow a verdict in a common-law court. This is a mistake. It is elementary law, that in equity a decree is never of right, as a judgment at law is, but of grace. Hence the chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing, and leaving the party to his redress at the hands of a court and jury. If in conscience the former should appear he will refuse to enjoin: Hiltio v. The Earl of Granville, 1 Craig & Ph. Ch. R. 292; Grey v. The Ohio and Penna. Railroad Co., supra. We think this is a safe rule, and that the case we are considering is within it. With these views, and on full consideration of all the testimony in the case, we are of opinion the injunction was properly refused in the court below, and that the decree dismissing the plaintiff’s bill with costs must be affirmed. Ajjpeal dismissed at the cost of the appellant.

OPINION OF THE COURT ROBERTS, Justice. This is an appeal from an order of the Commonwealth Court affirming an order of the Court of Common Pleas of Potter County which quashed, for lack of standing, an appeal from a determination by the Pennsylvania Liquor Control Board (“Board”) to grant a liquor license in excess of the prescribed quota for Portage Township. See Act of April 12, 1951, P.L. 90, art. IV, § 461, 47 P.S. § 4^l61(a), as amended. We vacate the order of the Commonwealth Court and remand to that court for consideration of the merits of appellants’ claim. Appellants are several individuals who hold liquor licenses in Potter County and the Tioga-Potter Tavern Owners Association (“Association”). The individual appellants participated in a hearing conducted by the Board on the application of El Rancho Grande, Inc. (“Applicant”), which had requested a liquor license for a proposed restaurant in the Township. Over the protests of the individual appellants, the Board approved the application, having determined that Portage Township was a “resort area,” see 47 P.S. § 4r-461(b), and that facilities provided by the existing license holders were inadequate to meet the needs of the resident and transient population of the area, see Willowbrook Country Club, Inc. Liquor License Case, 409 Pa. 370, 187 A.2d 154 (1962). Claiming that the township was not within a “resort area,” that Potter County was already adequately served, and that their businesses would be harmed by the granting of a license in excess of the statutory quota, the individual appellants appealed the Board’s ruling to the court of common pleas. Appellant Association sought leave to intervene as an additional appellant, and the court permitted the Association to intervene for the limited purpose of arguing the standing of both itself and the individual appellants. After a hearing at which arguments were presented by counsel for all parties, the trial court denied standing to all appellants, stating that it did so “reluctantly.” A divided panel of the Commonwealth Court affirmed. In re: Application of El Rancho Grande, Inc., 51 Pa.Cmwlth. 410, 414 A.2d 751 (1980) (Blatt, J., dissenting). We granted allowance of appeal. Section 464 of the Liquor Code, 47 P.S. § 4-464, sets forth specific classes of persons and institutions who may appeal from the Board’s determination to grant or refuse a license: “Any applicant who has appeared before the board or any agent thereof at any hearing, as above provided, who is aggrieved by the refusal of the board to issue any such license or to renew or transfer any such license may appeal, or any church, hospital, charitable institution, school or public playground located within three hundred feet of the premises applied for, aggrieved by the action of the board in granting the issuance of any such license or the transfer of any such license, may take an appeal limited to the question of such grievance, within twenty days from date of refusal or grant, to the court of quarter sessions of the county in which the premises applied for is located or the county court of Allegheny County. Such appeal shall be upon petition of the aggrieved party, who shall serve a copy thereof upon the board, whereupon a hearing shall be held upon the petition by the court upon ten days’ notice to the board, which shall be represented in the proceeding by the Department of Justice. The said appeal shall act as a supersedeas unless upon sufficient cause shown the court shall determine otherwise. The court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved, at such time as it shall fix, of which notice shall be given to the board.” Additionally, inhabitants of the neighborhood within five hundred feet of an establishment which has successfully sought a license have been granted standing to appeal on the basis of section 404 of the Code. That section sets forth the circumstances in which the Board may grant an application for a hotel, restaurant, or club liquor license, with the following relevant provisos: “Provided, however, That in the case of any new license or the transfer of any license to a new location the board may, in its discretion, grant or refuse such new license or transfer if such place proposed to be licensed is within three hundred feet of any church, hospital, charitable institution, school, or public playground, or if such new license or transfer is applied for a place which is within two hundred feet of any other premises which is licensed by the board, or if such new license or transfer is applied for a place where the principal business is the sale of liquid fuels and oil: And provided further, That the board shall refuse any application for a new license or the transfer of any license to a new location if, in the board’s opinion, such new license or transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed.” 47 P.S. § 4-404. See Gismondi Liquor License Case, 199 Pa.Super. 619, 186 A.2d 448 (1962). Appellants concede that they come within none of these provisions of the Code, but contend that they have standing to appeal the Board’s determination by virtue of section 702 of the Administrative Agency Law, which states: “Any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursu ant to Title 42 (relating to judiciary and judicial procedure).” 2 Pa.C.S. § 702. Despite this broad legislative grant of permission to appeal from a determination of a Commonwealth agency, the majority of the Commonwealth Court panel held that because appellants did not fall within any of the classifications of interested parties set forth in sections 404 and 464 of the Liquor Code, they had no “direct interest in the adjudication of the Board” and thus lacked standing to appeal. Such a conclusion renders section 702 of the Administrative Agency Law superfluous by limiting its application to those parties who are already statutorily permitted to appeal. Moreover, it ignores section 701 of that Law, which states: “(a) General rule. — Except as provided in subsection (b), this subchapter shall apply to all Commonwealth agencies regardless of the fact that a statute expressly provides that there shall be no appeal from an adjudication of an agency, or that the adjudication of an agency shall be final or conclusive, or shall not be subject to review. (b) Exceptions. — None of the provisions of this subchapter shall apply to: (1) Any matter which is exempt from Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies). (2) Any appeal from a Commonwealth agency which may be taken initially to the courts of common pleas under 42 Pa.C.S. § 933 (relating to appeals from government agencies).” 2 Pa.C.S. § 701. If section 702 applies to all Commonwealth agencies even when a statute provides that “there shall be no appeal,” then a fortiori it applies when a statute grants an automatic right of appeal to certain limited classes of interested parties. Therefore, pursuant to section 702, we must inquire whether, under traditional concepts of standing, appellants have been “aggrieved” by the Board’s action in granting a license to Applicant and whether they have a “direct interest” in the Board’s adjudication. Our cases dealing with standing have been summarized in Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975): “The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.” 464 Pa. at 192, 346 A.2d at 280-81 (plurality opinion). Accord, e.g., Independent State Store Union v. Pennsylvania Liquor Control Board, 495 Pa. 145, 432 A.2d 1375 (1981). Moreover, “the relationship between the challenged action and the asserted injury must be direct and immediate, not a remote consequence.” Independent State Store Union, supra, 495 Pa. at 154, 432 A.2d at 1380. Certainly the individual appellants here have asserted an interest beyond the common interest of all citizens. They allege that they are the closest licensees to Applicant’s proposed establishment, and that certain of them are located at distances of one to three miles from the new licensee. The record contains testimony sufficient to support a finding that one or more of the individual appellants would be driven out of business by the presence of an additional licensee. Thus, the alleged injury is clearly both substantial and particular to appellants. See Wm. Penn Parking Ga rage v. City of Pittsburgh, supra, 464 Pa. at 192-97, 346 A.2d at 280-83. Nonetheless, Applicant argues that appellants do not have the type of direct and immediate interest in the Board’s action necessary to confer standing under our cases. Applicant contends that since the Liquor Code, 47 P.S. § 1-101 et seq., was not intended to protect existing license holders from competition, the causal connection between the Board’s action and appellants’ asserted injury is too remote. In support, Applicant cites language in Wm. Penn which states that “standing will be more readily found where protection of the type of interest asserted is among the policies underlying the legal rule relied upon by the person claiming to be ‘aggrieved.’ ” 464 Pa. at 198, 346 A.2d at 284. Applicant reads this statement to mean that if the interest asserted by a person challenging governmental action is not protected by the “policies underlying the legal rule,” the interest is not immediate and thus standing does not exist. Such an interpretation seeks to transform into a restrictive test what was intended as a guideline to an expanded concept of standing to challenge administrative action. As this Court recently observed, “[i]n Wm. Penn, supra, 464 Pa. at 197, 346 A.2d at 283, the requirement that the interest be immediate was explained as involving a concern with ‘the nature of the causal connection between the action complained of and the injury to the person challenging it.’ Necessarily any examination of this requirement was said to be a question of degree for which only guidelines could be established. One of the two guidelines discussed was whether the type of interest asserted was among the policies or interests protected by the legal or constitutional rule relied on by the person claiming standing. Stated another way, i.e., in terms of federal cases, . . . this guideline determines whether ‘the interest [the taxpayer] seeks to protect is “arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question.” ’ Wm. Penn, supra, 464 Pa. at 198 n.23, 346 A.2d at 284 n.23 [quoting Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970).]” Application of Biester, 487 Pa. 438, 444 n.6, 409 A.2d 848, 851-52 n.6 (1979) (citation omitted). In Association of Data Processing Service Organizations v. Camp, supra, plaintiffs in the business of providing data services brought an action under section 702 of the Administrative Procedure Act, 5 U.S.C. § 702, seeking to challenge a ruling by the Comptroller of the Currency permitting national banks to furnish data services to their customers. The court of appeals denied plaintiffs standing on the ground that no “legal interest” of the plaintiffs had been invaded. Stating that the “legal interest” test is more properly concerned with the merits, the Supreme Court reversed, finding that plaintiffs’ competitive interests were “arguably within the zone of interests protected or regulated” by section 4 of the Bank Service Corporation Act, 12 U.S.C. § 1864, which provides: “No bank service corporation may engage in any activity other than the performance of bank services for banks.” Observing that “[t]here is no presumption against judicial review and in favor of administrative absolutism,” the Court held that the “generous review provisions” of the Administrative Procedure Act entitled the plaintiffs to standing to challenge the ruling of the Comptroller. 397 U.S. at 153-57, 90 S.Ct. at 830-31. See Arnold Tours v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970) (for same reason, travel agents accorded standing to challenge ruling permitting banks to furnish travel services). With these considerations in mind, we turn to appellants’ claim to a direct interest in the Board’s determination under the similarly broad review provisions of Pennsylvania’s Administrative Agency Law, 2 Pa.C.S. § 701 et seq. An introductory section of the Liquor Code states: “This power shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth and to prohibit forever the open saloon, and all of the provisions of this act shall be liberally construed for the accomplishment of this purpose.” 47 P.S. § l-104(a). The purpose of regulatory legislation in this area has always been to restrain the sale of liquor, not to promote it. See, e.g., Bierman Liquor License Case, 188 Pa.Super. 200, 145 A.2d 867 (1958); Application of Bethel Township Veterans Home Ass’n, 180 Pa.Super. 159, 119 A.2d 613 (1956). To that end, the Legislature has imposed a quota limiting the number of retail licenses to be issued in each municipality in the Commonwealth, 47 P.S. § 4-461. By limiting according to population the number of licensees which may operate in a municipality, the Liquor Code necessarily regulates the level of competition which exists among licensees, whether or not such regulation is a stated purpose of the Code. Because in certain municipalities population levels may increase substantially with a seasonal influx of visitors, the Legislature has granted to the Liquor Control Board the power to increase the number of licenses above the statutory quota “in any such municipality which in the opinion of the board is located ^within a resort area.” 47 P.S. § 4 — 461(b). The Legislature did not define the term “resort area” but instead has left the definition to judicial interpretation. Construing the relevant legislative history, our courts have determined that the. “resort area” exception was intended “to render an equitable distribution of such licenses in areas where, during certain seasons, the population is'increased to such an extent that the usual number of licenses is not adequate to serve the needs of the people.” Willowbrook Country Club, Inc. Liquor License Case, supra, 409 Pa. at 373, 187 A.2d at 155, citing Bierman Liquor License Case, supra (emphasis in original). Thus it is clear that the Legislature did not intend the Board to have unlimited discretion in awarding licenses in excess of the prescribed quota; rather, in keeping with its purpose to restrain the sale of liquor, the Legislature intended that the Board award an additional license only in an area which undergoes a seasonal increase in population and only when the applicant has demonstrated that the area has an “actual need” for an additional license. Willowbrook Country Club, Inc. Liquor License Case, supra. Here, it is undisputed that the quota for the municipality in which Applicant seeks a liquor license is full, and that, but for the Board’s determination that Portage Township is within a resort area and needs an additional license, Applicant’s request for a license would have been denied. The record reveals that the site of Applicant’s proposed establishment is an open field in a sparsely populated area, with only one farmhouse and a seasonal “camp” located nearby. Under Applicant’s theory of the exclusivity of the Liquor Code provisions relating to appeals, no one in Portage Township but the owners of the farmhouse and the “camp” would have standing to challenge the Board’s determination that Portage Township needed another liquor licensee. In fact, under this theory, were it not for the chance location of the farmhouse and “camp” within five hundred feet of the proposed establishment, no one at all would have standing to challenge the Board’s granting of the additional license or, indeed, as many additional licenses as there are open areas in Portage Township. We cannot believe that the Legislature intended to permit every disappointed applicant to appeal from the denial of a license and at the same time to permit no judicial review of the granting of a license in certain cases solely on the basis of geographic fortuity. To the contrary, the plain language of section 702 of the Administrative Agency Law makes it unmistakably clear that the Legislature intended to subject the actions of its agencies to increased judicial review, not to insulate them from it. Nor does the fact that the individual appellants are themselves engaged in the business of selling liquor disqualify them from representing the public interests which the Liquor Code was intended to serve. The regulatory scheme at issue in Data Processing was designed to protect the public from the possibility of bank failure by restraining national banks from excessive diversification. Noting that “[wjhere statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action,” the Court stated: “Certainly he who is ‘likely to be financially injured’ . . . may be a reliable private attorney general to litigate the issues of the public interest in the present case. 397 U.S. at 154, 90 S.Ct. at 830, citing FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869 (1940) (although economic injury to existing station not an independent element to be considered in FCC decision to grant new license, existing station claiming economic injury has standing to bring errors of law to attention of appellate court). Accord, Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). So, too, in cases where the Liquor Control Board has decided to grant a license in excess of the statutory quota, competitors like the individual appellants who claim to have been financially injured may be the only persons willing to expend the time and funds to pursue an appeal. Although they may not obtain a remedy at law solely on the basis of their economic injury, the injury is nonetheless so inextricably intertwined with the fundamental goals which the Liquor Code seeks to achieve as to make the individual appellants vigorous and reliable representatives of the public interest. Therefore, in keeping both with the concepts of standing enunciated by this Court and with the legislative intent to provide increased judicial review of the actions of its agencies, we conclude that the individual appellants have standing to appeal the Board’s determination to grant Applicant a “resort area” license in excess of the statutory quota. As to the standing of appellant Tioga-Potter Tavern Owners Association, the Association’s position appears to be more that of an amicus curiae than that of an injured party. The Association did not appear before the Board to contest Applicant’s request for a license. It did not advance any issues before the court of common pleas that uniquely affected the Association. Rather, it merely sought to advance the issues that had already been advanced by the individual appellants. Thus, the Association lacks standing. It is, however, free to participate as an amicus curiae on remand, pursuant to Pa.R.App.P. 531. Accordingly, the order of the Commonwealth Court is vacated and the case remanded to that court for consideration of the merits. WILKINSON, J., did not participate in the consideration or decision of this case. . In Gismondi the Superior Court held that, despite the failure of section 464 to mention nearby residents as among those specifically authorized to take an appeal, the language of section 404 compelled the conclusion that, if these residents appeared before the Board to protest a proposed transfer or granting of a license, they became “parties aggrieved by an adverse decision of the Board or of the lower court.” Id., 199 Pa.Super. at 624, 186 A.2d at 451. . See 42 Pa.C.S. § 763(a) (appeals from government agencies under § 702 vested in Commonwealth Court). Section 702 implements, as to Commonwealth agencies, Article V, section 9 of the Pennsylvania Constitution, which provides: “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 Bronson v. Commonwealth Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980). . Applicant also relies upon Ritter Finance Co. v. Myers, 401 Pa. 467, 165 A.2d 246 (1960), which involved a challenge to the granting of a loan company application under the Small Loans Act, 7 P.S. § 751 et seq. That case, however, was decided before the enactment of the present Administrative Agency Law; review there was sought under common law certiorari. . Application of Biester concerned a question of taxpayer standing, and thus the bracketed word “taxpayer” was inserted in the language quoted from Data Processing; the Supreme Court had used the broader term “complainant.”

Tilghman C. J. The plaintiff in error in this case, has assigned a number of errors. I shall confine my opinion to one, viz. that there were only five days between the issuing and return of the summons. It does not appear, on the face of the summons, at what time it issued, nor does the return of the sheriff shew, on what day it was served. In order to ascertain the matter, the plaintiff in error alleged diminution; and a certiorari having issued from this court, the praecipe has been brought up, by which it is evident, that there were but five days between the issuing and return of the summons. But it is objected by the defendant in error, that we can take no notice of the prcecipe, it being no part of the record. If the day of issuing the summons is a material fact, and there ' is evidence of this fact among the papers filed of record, in the office of the prothonotary of the Court of Common Pleas, it would be extraordinary if this court were debarred from looking at these papers. I considerthepraecipe as part of there-cord. It is the foundation of all the proceedings,beingthe order of the plaintiff’s attorney for issuing the first process.. That it is part of the record, is manifest, from this, that the court may order an amendment of the summons, according to the prcecipe. Some confusion concerning writs of error, has arisen from the different practice in the courts of England and those of this country. In England the writ of error is directed to the Chief Justice alone, and consequently the return is made in the first instance by him only. His clerk has not the custody of the different writs, which have been issued in the course of the cause; and therefore he returns only the plea-roll, consisting of the pleadings, tlje verdict, and the judgment. The plaintiff in error, if he intends to assign error in any matter not appearing in the body of the record .returned by the Chief Justice, is obliged to allege diminution in the particular part, in which the error lies, whereupon a certiorari issues to the officer who has the custody of that part, and on his sending it up, it becomes part of the record in the superior court. Our practice is different. The Chief Justice of this court, or the president of the Court of Common Pleas has not the keeping of any part of the record. The whole is in the custody of the prothonotary of each court. Writs of error, therefore, are not directed to the Chief Justice, or the president, but to the whole court. Consequently there can be no objection to returning the whole record, including the prxcipe and every part of the process, at once. This will prevent the delay, arising from the necessity of issuing a writ of certiorari when diminution is alleged, and I hope that in future, this mode of making the return will be adopted. The next consideration is, whether the want of ten days between the issuing and return of the summons, is error. It is presumed, that the practice of issuing a summons against executors and administrators, has arisen from a very liberal construction of the act of 20th March 1724-5. This act does not expressly extend to executors, but in its terms is confined. to freeholders, who, except in certain cases, are exempted ' from arrests, and are to be proceeded against by summons. In case of nonappearance after summons, provided it has been served on the defendant ten days before the court, the plaintiff is authorised to file a common appearance for the defendant, and proceed to judgment by nil dicit. It was decided by the late Chief justice Shippen, when president of the Court of Common Pleas, in the case of Mary Penrose v. Jonathan Penrose &c. executors of Joseph Penrose, (June 1786) that the plaintiff may still proceed by capias against an executor. But granting, for sake of the argument, that he may proceed by summons at his election, he must take this process subject to the provisions in the act above mentioned; he shall-not be entitled to a judgment by default, unless the summons has been served ten days before the return day. No reason can be assigned for distinguishing the case of an executor from that of a freeholder. It has been said indeed, that a practice has prevailed of taking judgment by default, against executors, after service of the summons four days before the court. But that practice has been by no means general. The court has never sanctioned it by any decision; and to a practice sub silentio, without any law to support it, we ought not to pay much regard. I am of opinion that the judgment is erroneous, and should be reversed. Yeates J. and Brackenridge J. of the same opinion. Judgment reversed.

The opinion of the Court was delivered by Duncan J. This indictment consisted of nine Courts. The jury have found separate verdicts. On the first, which was for conspiring to sell lottery tickets, in a lottery not authorised by the laws of this Commonwealth, the jury have found the defendants guilty, so far as relates to a, ticket. On the second, which was for a conspiracy to advertise, not guilty against both. On the third count against both, for selling lottery tickets not authorised by the laws of this Commonwealth, guilty of selling a lottery ticket. On the fourth, for advertising such lottery tickets, not guilty. On the fifth, against Gregory for selling such lottery tickets, guilty as to one ticket. On the sixth, against Gillespie for selling such lottery tickets, guilty as to. one ticket. On the seventh, for advertising, against Gregory, not guilty. On the eighth, for advertising, against Gillespie, not guilty. On the ninth, for selling a lottery ticket set out in words and figures, guilty against both. The defendants have moved for a new trial, and in arrest of judgment. The motion in arrest of judgment, I will first consider. The reasons in arrest of judgment, are,'that the offence, in the 3d, 5th, and 6th, counts, is not laid with sufficient certainty; that, the offences could not be laid in the same indictment; that the defendants could not be indicted jointly and severally in the same indictments, f do not think it necessary to set out the ticket or tickets ; but the indictment should state, what tvas the name of the lottery, and the number,of tickets sold, where the charge is for advertising or selling. For the charge must contain a certain des cription of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offence, and the defendant be put on his trial for another, without any authority ; so that the Court may see a definite offence on record, that they may apply the judgment, and the punishment which the law prescribes and so that the defendant’s conviction or acquittal may insure his subsequent protection; that he may be enabled to plead it in bar of any subsequent proceedings. The indictment ought to state the fact, with as much certainty as the nature of the crime will admit. There are cases, consisting of a series of transgressions, which constitute the offence, a being a common scold or barretor; keeping a disorderly house, &c.,' where it must be charged generally. An indictment ought, at least, to be as certain as a declaration. An indictment for fishing in a fishery, and taking away divers fish, was bad at common law. Key v. Marshal, 2 Keb. 594. For it is material that the defendant should be apprised of the charge against him, in order to prepare for his defence; and it is clear that an indictment for stealing divers fish, not specifying the number, would be insufficient. Paley on Convictions, 82. An indictment for engrossing a great quantity of straw and hay, without mentioning the quantity, quashed for uncertainty. Cro. Car. 380. 1 Stra. 497, King v. Gibbs. Indictment for selling divers quanties of beer in unlawful measures, is too general; for the Court cannot form a judgment in what degree to punish the defendant. In trespass, the number and nature of things ought to be mentioned. Playter's Case, 5 Rep. 34. A conviction on Stat. 43. El. C. 7, for cutting down divers lime trees, quashed for uncertainty; the number not being set out. Queen v. Burnaby, 2 Ld. Raym. 900. In trespass for taking divers goods, not saying what goods, judgment arrested after verdict, for uncertainty in not specifying what the goods were, so that the recovery could not be pleaded in bar of another action brought for the same goods. Wiat v. Essington, 2 Ld. Raym. 1410; and see 2 Saund. notes, 310. The third, fifth, and sixth counts, cannot be supported, and judgment on them must be arrested. In Stewart v. The Commonwealth, a judgment on an indictment for stealing sundry promissory notes for the payment of money of the value of eighty dollars, of the goods and chattels of A., was reversed for the vagueness and uncertainty, 4 Serg. & Rawle, 194. But the same reason does not apply to the first count, for the conspiracy itself is the crime. It is different from an indictment for stealing, or action for trespass, where the offence consists of an act done, which it is clearly in the power of the prosecutor to lay with ceitainty. The conspiracy here was, to sell prohibited lottery tickets, any that he could, sell j not of any particular prohibited lottery* but of all., The con - spiracy was the gravamen, the gist of the offence. These several charges, as laid in the indictment, are different modes of laying the same offence. But if the offences were different, separate offences, it is no objection either on demurrer or in arrest of judgment, that separate offences of the same nature, are joined against the same defendant. Even in case of felony, though it be true that no more' than one offence should regularly be charged, in one indictment, and that the Court would quash the indictment before plea, or, if on the trial, the Court should think it might confound the prisoner, they may exercise a discretion in compelling the prosecutor to elect on which charge he will proceed, yet even in felonies, there is no objection to the insertion of several distinct offences of the. same degree, though committed at different times, in the same indictment against the same offender * and it is no ground of demurrer, or in arrest of judgment, and counts, where offences are of the same nature, counts at common law, and on a statute, may be joined, 1 Ghitty G. L. 175. In misdemeanor, no objection can be made to joining several in the same indictment in any stage of the proceeeding. 2 Burr. 984. Nor does it form any objection, that several are joined in the same indictment, for the same act. For though torts are in their nature several, and each one must answer for his own independent crime, yet when the act admits of the agency of several, as assault and battery, or libel, they may be indicted jointly or severally. Not so of perjury, because the assignment must be of the very words uttered, and the words of one cannot be applied to another ; or where the criminality arises in consequence of some personal disqualification, as for exercising a trade not having served a due apprenticeship. Nor is the objection maintained, that several persons could not be severally in-dieted in the same bill for separate offences.. For though it might be in the discretion off the Court, to quash such indictment, yet it cannot be taken advantage of in arrest of judgment. For.they are considered as several' indictments in point of law. Ld. Hale, 2 H. H. P. C. 174, says, “ it is in common experience at this day, that twenty persons may be indicted for keeping disorderly houses, and they are duly convicted on such indictments ; for the word separalite makes the several indictments.” The first and ninth counts-are good counts, and judgment should be rendered on, them. But there is a motion for a new trial, on the first, as being a verdict against evidence, and on the ninth on account of the variance between the ticket described- in the indictment, and that given in evidence. -The evidence was, that a. lotlery office was kept in a house .rented by Gillespie in this city, for several years, under a sign in the name of Gillespie's lottery office ; that Gregory, a young lad, acted as his servant, or agent in that office, and sold the ticket produced in evidence, a New York literature lottery ticket, and indorsed in the name of Gillespie; a lottery, not authorised by the laws of this Commonwealth;' that Gillespie occasionally visited Philadelphia. I did not instruct the jury, that Gillespie was criminally answerable for the act of his agent or servant, but I left them to decide, whether, from the whole body of the evidence, Gillespie was concerned in the sale of this ticket. The house his; the boy conducting business for him vas a lottery broker,'under his-sign ; selling this very ticket as his agent, and in his name. These were circumstances, from which the.jury might infer his participation in the. sale of this ticket; more especially as, if the boy had been employed as his agent to sell tickets authorised by the laws of this State, and not tickets prohibited, a production of his books would establish his innocence. That criminality, even in acts of the blackest dye, might be made out by circumstantial evidence. I put to the jury as examples, libels sold by a child in the shop of a printer ; tippling houses, liquor sold by a boy; bawdy houses, where the keeper kept out of view herself, though she was the owner of the house ; and I did put it to the jury'as a case'in which the evidentia rei, the res ipsa loquitur, might afford satisfactory evidence of the participation of Gillespie. But it was for them to draw their own conclusion of participation or not. .If they found he had not participated in the transaction, they were instructed to acquit both, as to the indictment for conspiracy, if otherwjge^ to They have been convicted,and to my entire satisfaction. For the law would be a dead letter—we would become the laughing stock of our sister'States, either for the inaccuracy and little foresight of our law makers, or for the imbecility of those employed in the administration, if such a procedure as this was not brought within the law, if our neighbours from New York or Baltimore, could levy a revenue in-this State, by the employment of a child or a slave. It makes no difference where Gillespie resided, if he conspired to sell New York lottery tickets in Pennsylvania, with his agent, and the agent effected the act, the object of unlawful conspiracy ; he is answerable criminally to our laws. In this offence, there is no accessary. It must be recollected, the conspiracy is a matter of inference, deducible from the acts of the parties accused, done in pursuance of an apparent criminal purpose, in common between them, and which rarely are confined to one placej and if the parties are linked in one community of design, and of interest, there can be no good reason,' why both may not be tried, where one distinct overt act is committed. For he who procures another to commit a misdemeanour, is guilty of the fact, in whatever place it is.committed by the procuree. For if Gillespie was not accountable to our laws, then this offence would within our State be committed by him with impunity. For that consequence must follow, from its being held to be no crime in him, residing in New York, to procure the selling of lottery tickets in Pennsylvania, and the argument must rest on the position, that he owed no obedience to these laws, and had been guilty of no offence in contravening them. This count was not abandoned on the trial on the part of the State. I do not precisely recollect, whether the gentlemen who conducted the prosecution, in stating the testimony, applied it to each count. Nor was there any occasion for this : for it equally went to prove every count in the indictment, as it did to any one. But I well recollect, there was an address ic the Court on the insufficiency of this count. I am of opinion, and in this, every member of the Court agrees, that the verdict was not contrary to the evidence. On the variance between the ticket described in the ninth count, and the ticket given in evidence; on very full consideration, 1 am of opinion, I decided erroneously. I was led into error by not discriminating sufficiently between allegations of description and those of substance between pleas in abatement, and questions of identity, and matters of literal description ; and confess, I was carried away by the idem so-nans, by the sound, as I must say, rather than by the real substance of the rule. Where, the prosecutor has undertaken to set oiit the lottery ticket, literatim, in words and figures following, this imports a tenor—a transcript, and implies the very same. Where a letter, omitted or changed, makes another word, though if be insensible, the variance is fatal. Queen v. Drake, 1 Salk. 660. The case of Williams v. Ogle, 2 Str. 889, is the only case to be found, where on mil tiel record, the change of a letter in a name, which did not alter the sound, as Segrave and Seagrave, was not held to be a fatal variance. 2 Str. 889. But, it is but a short statement of three lines, and the reporter adds a queere tamen, where the party has something else to go by, than the sound. It is true, Chitty, in his Criminal Law, 1 Chitty, 284, gives credit to this case, which the reporter, himself, had discredited. The sound in names, is what governs in cases of pleas of misnomer, questions of identity; there, it does not depend on the omission of a letter making another word, but another sound; for I think it has been determined that in these cases, Shakespear, Shackspere, are the same, because idem sonans. But if you omit the s in the middle, and give it another sound, there is a failure, as Shakepear. Burrall, Bur-rill, Burrell, are certainly idem sonans, and so is Bur-well; but I do not suppose, that in an indictment for forgery, setting out the instrument in hcec verba, that stating it to import to have been given by Burrill, would be supported by a paper, signed Burwell; now, the idem sonans must hold in every case of description, or there is nothing in it. Would it do in Leigh and Lee, Caldcleaugh and Calclew, Duncan and Dunkin ? Would it do in Tallifer for Taliafero, Chum, ley for Cholmondely? Sound may be the substance of a name, and when it is a matter of substance, it might hold, like any other allegation of substance; but sound is not a matter verbatim et literatim. name js a WOrd, and in undertaking to set out the name literatim it was not a vox et preterea nihil. Different lettgrs wjjj make different names, though the sound be the same. The word would then be a different word—another word; which in all cases of description, makes the variance fatal. Had this been set out in the manner following, the variance would not have been fatal; but when the phrase by legal intendment professes an exact recital, as here in the words and figures following, all the cases seem to require a literal precision, unless where it does not change one word for another. The verdict on the last count ought not to stand, but on the Attorney General entering a nolle prosequi. on that count, I can see no difficulty in entering judgment on the first count, as the verdict is separate. I see nothing to prevent a nolle prosequi on the ninth, at any time before judgment, for the ticket was proper evidence on that count. There is nothing in the objection, as it relates to the uncertainty in the verdict. The verdict, in making up the record, would stand, that the defendants and each of them were guilty in manner and form, as they stood indicted on each count.

The opinion of the court was delivered by Gibson, C. J. The certificate of the presiding justice of Jefferson county, that the attestátion of the clerk is in due form of law, was sufficient to introduce the exemplification of the will. The laws of Virginia are to be proved- as the laws of a foreign Country; but, the acts of its courts may,' undoubtedly, bé resorted to for their exposition. To the act of the county court, in holding jurisdiction of the subject of probate, the.maxim omnia presumuntur rite esse acta, is aS applicable as it is to judicial proceedings in our own state. The articles of agreement were competent evidence, because they constitute a part" of the title under which all parties claim; and, it is, therefore, immaterial, whether the executors derived an .authority to complete the purchase under the will. Having ratified their acts by taking the estate subject to the provisions of the will, Philip, or any one claiming under him, is estopped from denying their authority. ' ‘ The intention to charge the'premises with the maintenance of the testator’s -daughters, Catharine and Elizabeth, although .not expressed in terms, is, nevertheless, clear and satisfactory. • It is to be collected from all-the parts of the will considered in reference to the testator’s circumstances. Having articled for the sale of the mansion place -in Virginia, he sends his son to Pennsylvania to purchase the premises in' dispute; but before his return, sickens, makes his will, and dies. He. provides contingently for the projected purchase, by directing his executors, in- case it should be effected, to execute the contract for the sale of the mansion- place; and he devises the premises in question to his son Philip, coupled with this clause:—“My son Philip is to keep and provide for my wife and my two oldest daughters, Catharine and Elizabeth, during their natural lives. ” He also provides for the failure, of the contemplated- purchase, by forbidding the executors, in that event, to complete the sale of the mansion place, and by directing, that it be held by his wife and children till the youngest come of age, Philip working the land, and rendering a third of the produce for their use. He further directs the place to be sold when the youngest shall have come, of age, and the proceeds to be distributed in the same proportions, and among the same persons to'whom the land expected-to be purchased by his son, would have gone. ThusJ the premises in dispute were to be a substitute for the mansion place, which was expressly.charged with the maintenance of the widow and children, while such a charge should no,t be in the way of the testator’s ulterior arrangements in respect of distribution. But as regards the premises in dispute, there are no-arrangements which are inconsistent with-an indefinite,continuance of such a charge; and there is, therefore, no reason, why his views in regard of the premises, should be, in any respect, different from those he enter.tajned in regard to the mansion place. The gift to Philip was on a condition which, in consequence of its very nature, adhered to the land. A legacy may undoubtedly be- charged on the land by implication, as was done in Nichols v. Postlethwaite, 2 Dall. 131; Hassanclever v. Tucker, 2 Binn. 526; Witman v. Norton, 6 Binn. 395, and Dobbins v. Stevens, 17 Serg. & Rawle, 13. No form of words is necessary to produce the effect; and, where the intent is manifest, courts are bound to carry it into .execution. .There were powerful motives for such an intention here. The subsequent insolvency, and death of Philip, have shown, that .his personal responsibility would have been an -unsafe pledge for the performance of his duties to his sisters. No -father would consent to commit the maintenance of his-daughters, in all the helplessness of:-idiocy, to a security so precarious. Pursuant to the instructions of the testator, his son agreed with the vendors on the terms of the purchase, but did not enter into articles agreeably to the letter of, the condition on which the land was to pass by the will; and.it was nevertheless agreed on all hands, that the executors.should complete the purchase as if. articles had been executed. Accordingly, they,paid the purchase, money, and the vendors executed a conveyance to Philip, according to the testator’s directions. Hence, as the defendants, claiming under Philip, derive the legal estate directly from the vendors, and not through the will, it was necessary to affeGt .them with notice of the equitable incumbrance of,the daughters’ maintenance. To this end, it was proved, that an uncle of the daughters, and an inhabitant actually ráledin the township in which,they are settled, gave actual notice to one off them at the sale, and to the other a short time previous, the third being merely a tenant. In addition, it was shown, that another rateable' inhabitant of the same township, had not only informed them of the existence of the incumbrance, but had repeated to them nearly the-words (if the will by which it was created. Now, although a purchaser may disregard "rumours, set . afloat by those who have no right to intermeddle, lie is bound to attend to the admonitions of a party in .interest. Here the daughters, although actually charged to the township, had an interest of their own, from attending to which, they were disabled by idiocy; and, surely one so near in blood' as án uncle, might lawfully interpose for their protection. The overseers may also interpose; but, as they may be ignorant of the rights or claims of the paupers committed to their charge, every rateable inhabitant has an interest which renders him competent to act ih the matter for the common good. The information given was full, direct, -explicit, and amply.sufficient to put the purchasers on an inquiry, which, had' it been pursued, would have terminated in a perfect knowledge of all-the circumstances. The concluding, objection is to the joinder of the ov.erseers and the paupers in the same ejectment. By the -act of the 29th of March, 1819, overseers of the poor are empowered to recover the money, •or other property, of paupers committed to their charge, for the purpose of applying it to their maintenance; but, whether in their, corporate name, or in the name of the pauper, is not specified; Perhaps an action would lie in the name of either. But, it is said, that whichsoever way it be taken, there cannot be an action in the names of both. By the act of the 31st of March, 1823, it is provided, that in ejectments by more than one, a plaintiff failing to establish his title, may become nonsuit, and a verdict nevertheless pass for the others. Now, had the Overseers, or the-paupers, become nonsuit here, -the case would have been within the letter of the act. Even as it. stands, it. is so entirely within its spirit, that we would not exercise a sound discretion, were we t,o say, it is unsustainable. All parties are, in fact, interested: the overseers, in the application of the property in ease of the township; and, the paupers, to be let into the enjoyment of their father’s bounty. They have thus an interest in common, which entitles them to the possession. But, were all this otherwise, we ought not to use our discretion so as to trip up the parties really entitled, oh a trifling objection to the form of the action. . Tod, J. having been concerned as counsel, took no part in Che decision. Judgment a®rmed.

The opinion of the Court was delivered by Kennedy, J. The first error assigned is founded on an exception to the admission of Mr Brackenridge as a witness; first, because he has undertaken, as the agent of the plaintiff in error, who was also the plaintiff below, to give a lease of the land in question in this case to the defendants in error, under which they claimed a right to hold possession of it; and second, the matters of which he was to testify, were not the subject of oral evidence, because the act of assembly against frauds and perjuries requires that they should appear in writing. His having undertaken to act in the character of an agent for the plaintiff, is not sufficient to render him incompetent. The general rule on this subject seems to be in favour of the competency of the agent as a witness, unless in cases where the principal is sued on account of the negligence of the agent. In such cases the agent cannot be a witness for the principal, because in the event of a recovery against the principal, the agent becomes liable to indemnify his principal; and the judgment against the principal would be evidence against the agent in an action by the principal for indemnity. Hence it is the interest of the agent to procure by his testimony a judgment in favour of his principal, and therefore held incompetent. But the conduct of Mr Brackenridge is not impeached in this case; nor was he called to testify in favour of the plaintiff for whom he had undertaken to act as agent. I am unable to perceive that his interest lay more on the one side than on the other in this case; and therefore ii cannot be considered that he was inadmissible on the ground of interest. ' Having then no interest in the result of the suit, why should he not be competent to establish by his own testimony his authority as an agent? He is not a party on the record to the suit, that he should be excluded for tbat reason. Nor can it be said that he does not know the fact as well as any other. Then, unless there be some principle of policy that renders him incompetent as a witness for this purpose, it seems impossible to imagine any other ground for his being so; and so far as sound policy is concerned in the question, I am unable to satisfy my mind that the interest of the community would be advanced in the least by declaring him incompetent. Next, as to the objection growing out of the act against frauds and perjuries, which declares, that “all leases, &c. made or created, &c. by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the form and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding, except nevertheless all leases not exceeding the term of three years from the making thereof.” Now, although from the terms of this act, the- authority under which Mr Bracken-ridge professed to act as the agent of the plaintiff, ought to have been in writing, so as to have given full effect to the lease according to its tenor; _ yet supposing he made it without either written or verbal authority, and that the plaintiff afterwards knowingly received the rents as they became due, and were paid under it by the tenants, it might very properly be considered an implied assent, at least, by parol to the lease on his part, and give to it the force and effect of a lease at will; and if the tenants were suffered to hold under it for upwards of a year, paying the rent as it became due, and the plaintiff receiving it without objection, the lease, instead of continuing to be a lease strictly at will, would thereby become a lease from year to year, so that the tenants could only be put out of possession at the end of a year, upon having received three months previous notice to quit. See Riggs n. Bell, 3 Term Rep. 371; Clayton v. Blakey, 8 Term Rep. 3; Schuyler v. Ligget, 2 Cowen 663; Peoples. Richart, 8 Cowen 226. These were all facts which could be proved by parol evidence; and whether they existed or not, was a question which could only be decided by the jury after hearing the evidence. The testimony of Mr Brackenridge tended in some degree to prove these facts, or at least some .of them, and was therefore admissible. The remaining errors insisted on in the argument, present but two questions. First, had Mr Brackenridge any sufficient authority from the plaintiff in error to make a lease of the property in question for a term of seven years 1 and second, if he had not, has Mr M’Dow-ell, the plaintiff, ratified and confirmed the lease made for that term of time by Mr Brackenridge 1 As to the first of these questions, when Mr Brackenridge made the lease for seven years, it is clear from his own testimony that he had no authority, not even'the colour of it, either verbal or written, from the plaintiff to make a lease of the property in dispute for more than one year. We have seen from the act of assembly already recited, that an authority to make a lease of real estate, for a term exceeding three years, must be in writing; and though Mr Brackenridge had an authority in writing from the plaintiff to make a lease for one year, yet that was all, and his making it for seven years was as much an act on his part without authority, as if he had had no power to make one for any period of time whatever. Notwithstanding, however, this lease for seven years was made without authority, it was still in the power of the plaintiff to ratify and confirm it: and this brings us to the second question, Pías he done sol It is not pretended that he ever did so by writing, and although he may-have done it by parol without writing, yet it is obvious that such confirmation could give to the lease no greater force or effect than if he had made it himself originally by parol without writing; which would, according to the express terms of the act, have given it the force and effect of a lease at will, and nothing more. It is proper to observe that such leases are not declared void by the act, but that they “ shall have the force and effect of leases or estates at will only.” But what was formerly held and considered to be a lease at will, is now deemed a lease from year to year, when possession has been taken under it and held for upr wards of a year, and the rent paid and received according to its terms. Hence a parol lease made by .the owner of land without writing, or by his agent constituted without writing, for a term exceeding three years, and possession taken and held under it for more than a year, the tenant during that time paying and the landlord receiving the rents as they became due, would be construed after-wards a lease from year to year, and might be put an end to by either party at the end of any year upon giving three months previous notice of his intention to do so; hut at no other time could it be terminated, unless by the consent of both parties. Although Mr Brackenridge made a lease in writing under his hand and seal for a term of seven years, yet as it was made without any authority from the plaintiff, it was not binding on him; but if he afterwards received the rents knowingly which became due and were paid on it without objection for„iipwards of a year, it may be considered as implying an assent on the part of the plaintiff, that the party paying the rent should hold the property mentioned in the written lease, on his paying the rent therein specified, as tenant from year to year. But even an express declaration on the part of the plaintiff, without writing, that he was satisfied with the written lease, would not have been sufficient to make it other as to him than a parol lease without writing, because this would not make it “a lease in writing, signed by the. plaintiff or his agent, thereunto lawfully authorized by writing,” which is what is required hy the very words of the act against frauds. In no view then that can be taken of the written lease made by Mr Brackenridge, and the subsequent consent of the plaintiff in respect to it, admitting all the evidence given on the trial to be true, can it be made such a lease of the plaintiff for a term of seven years as would be good under the act, or pass any other interest than an estate at will: or after the receipt of rent upon it for a sufficient length of time, may be turned into a lease from year to year. Now although the court below in their charge to the jury were clearly of opinion that Mr Brackenridge had no authority whatever from the plaintiff to make such a lease as he did, and that the plaintiff had done nothing which could do more than make it equivalent, at most, to a parol lease by him without writing; yet they took up a notion that the jury from the evidence might consider it as taken out of the operation of the act against frauds, because the defendants had done some work in repairing the pavement in front of the house, and had, by the terms of the lease, undertaken to pay a larger rent than had been paid under former leases of the same property; and accordingly instructed the jury, that “if the plaintiff, with a full knowledge of the fact that the property had been leased for seven years, had received the increased rent, or stood by and permitted improvements to be made having reference to the new lease, it would be inequitable to rescind the lease; and under such circumstances the defendants would not be affected by the statute.” It is not necessary in this case to decide whether under any, or what circumstances, a jury might, according to the rules and prin ciples which have'obtained in equity; enforce the specific execution of a parol lease, which, in its terms, comes within the provisions of the act against frauds : because the lease in question shows on its face that the making of improvements formed no part of the object either in giving or accepting it. It is barely a demise of the property on the one side for a term of seven years, and a stipulation on the other to pay a certain rent per annum without any increase or diminution of it during the lease. The enjoyment of the property in time past, and not in time to come, under such a lease, forms the consideration for the payment of the rent as it becomes payable, so that at the end of each quarter or year, as the rent becomes payable, the tenant, having enjoyed up to that time, has received the full consideration for the .quarter or year’s rent which has become due, and he can under no pretence withhold the payment of it; not even, I take it, were it. made manifest that he would be evicted the next day, before the expiration of the lease, under a better title than that of his lessor. But if he will make improvements not contemplated or authorized by the lease, he must be considered as doing them at his own risk, since he does not choose to consult his landlord in respect to them. He cannot be permitted to improve his landlord out of his legal rights. In this case, however, all the improvements made, appear to have been nothing more than what are ordinarily incident to tenancies from year to year. And as to the circumstance of the rent being greater than any previously paid for the same property, it is what generally occurs in every city or town in an improving condition, where both the population and business of it are increasing rapidly, as was the case here. That the tenant may be induced to give a higher rent, in consideration of the extended term of the lease, is altogether probable, especially where it is believed that real estate is rising in value every year; but then this is so generally connected with the making of leases in all cases, that it cannot be made the ground for taking this case out of the act, without in effect undertaking to repeal it. Besides, it is obvious from the tenor of the act itself, that the longer the term agreed on may be, the greater the necessity for having it reduced to writing and signed by the parties. It appears to me, therefore, that the court below erred in advising the jury that, under the circumstances given in evidence, they might consider the defendants as not affected by the statute. Judgment reversed, and a venire de novo awarded.

The opinion of the Court was delivered by Rogers, J. —The second section of the act of congress of the 19th of April 1816, makes it the duty of the collector, in certain cases, previously to issuing a license to the owners of stills used for the purpose of distilling spirituous liquors, to take a bond from the proprietor with two or more sureties, conditioned for the payment of the duties. The bond on which this suit was brought purports on its face to have been taken in pursuance of this act, but varies from the direction of the act in this particular, that it is executed by the principal with one surety only. It is contended by the defendant that for this reason the bond is void; but the court of common pleas were of a different opinion, and in this position they are supported by the authorities cited at the bar. The provisions of the act of congress are in this respect directory, and were intended as much for the protection of the collector as for the security of the revenue. If the parties dispense with two sureties it is no reason the bond should be avoided, although it makes the collector responsible to the government for the amount of the duties. It would be unreasonable to give this effect to the transaction, when the additional surety may have been dispensed with at his request, and for his benefit. It is said that a penalty is imposed on the owner of a still who distils liquors without a license, but notwithstanding this provision, I cannot agree that the owner who obtains a license under the circumstances stated, incurs the penalty imposed by the act. The license, although irregularly obtained, would be an available defence to a suit for the penalty. The act inflicts the penalty only on those who undertake to distil without license. But in the conclusion of the charge we think there was error. The bond purports to be a joint and several bond, intended to be executed by John Laughlin, Jun., Alexander Sharp and William Laughlin, conditioned for the payment of 318 dollars 60 cents, being the full amount of the duties payable by John Lauglin, Jun., in virtue of the act of congress passed April 19th, 1816, entitled “ an act to abolish the existing duties on spirits distilled within the United States, and to lay other duties, in lieu of those at present imposed, on licenses to distillers of spirituous liquors.” The bond, at the time Alexander Sharp affixed his signature to it, was filled up with the above names, and contains the reference to the act of congress, which requires, as before remarked, a bond, with two or.more sureties. At the time, therefore, that Alexander Sharp, who was the obligor second named, signed the bond, he had a right to believe that it was the intention of all the parties that the bond was to be taken in strict conformity with the act of congress, and that William Laughlin would also execute the bond. If, therefore, (his reasonable expectation was disappointed, either wilfully or negligently, he has cause to complain. Plis signature is conditional, and unless it be shown that the condition, viz. the execution of the bond by William Laughlin, whose name was in the body of it, has been dispensed with by him, he has a good defence to the suit. A man may be willing to bind himself jointly with another, and still unwilling to make himself alone responsible. We cannot agree with the court of common pleas that there is nothing justifying the construction from the face of the bond, in the absence of any other proof, that it is void as to the present defendant. Unless the plaintiff can show that Sharp was informed that William Laughlin had not signed the bond, and agreed that he would alone be liable, the plaintiff cannot recover, and the court should have so instructed the jury. It has been urged that this defence could not be made under the plea of payment, with leave, &c., and on this point we had some doubts; but on examination we are inclined to believe that this point has been already decided. Parol evidence has been admitted under the plea of payment to a suit on a bond against a surety, to show that he executed the bond under a declaration by the obligee that his signing was a mere matter of form, and that he never should be called on for payment. Miller v. Henderson. That was a case of fraud ; and in this it is contended it differs from the present. But although in this transaction it is probable at the time the parties did not intend to commit a fraud on Sharp, yet there is fraud in attempting to make a fraudulent use of the bond by enforcing payment from the defendant. Judgment reversed, and a venire ele novo awarded.

MONTEMURO, Judge: The appellant, Concetta Gallo, commenced an action in trespass and assumpsit against appellee, J.C. Penney Casualty Insurance Company, to recover No-Fault benefits to which she claims entitlement by reason of injuries sustained as a passenger in a snowmobile involved in an accident. The Court of Common Pleas of Northampton County, per the Honorable Franklin S. Van Antwerpen, granted the appellee’s motion for judgment on the pleadings on the ground that a snowmobile is not a motor vehicle as defined by the policy and by the No-Fault Act. The court concluded that because a snowmobile is not a vehicle, the contract of insurance between appellant and appellee does not provide coverage for the snowmobile accident. The sole question before us is whether the trial court erred in deciding as a matter of law that a snowmobile is not a motor vehicle. In reviewing a trial court’s order granting judgment on the pleadings, we are guided by the following standard: [A] motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party’s well pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him. Karns v. Tony Vitale Fireworks Corporation, 436 Pa. 181, 184, 259 A.2d 687, 688 (1969); Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966). A judgment on the pleadings shall not be entered when there are unknown or disputed issues of fact. North Star Coal Company v. Waverly Oil Works, Co., 447 Pa. 241, 288 A.2d 768 (1972); Sun Oil Company v. Bellone, 292 Pa.Super. 341, 437 A.2d 415 (1981). In conducting this inquiry, the court should confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983); Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981); SN, Inc. v. Long, 208 Pa.Super. 38, 220 A.2d 357 (1966). No affidavits, depositions or briefs may be considered. Id. Finally, we note that the “granting of a motion for judgment, on the plead ings may be appropriate in cases that turn upon the construction of a written agreement.” DiAndrea v. Reliance Savings and Loan Association, supra, 310 Pa.Super. at 546, 456 A.2d at 1070. The question before us was put into issue in the pleadings. See Defendant’s Answer and New Matter at p. 3, para. 17; Plaintiff’s Reply to New Matter at p. 1, para. 17. On May 6, 1982, the appellee filed a motion for judgment on the pleadings in which appellee contended, inter alia, that appellant had failed to state a claim upon which relief could be granted in that the insurance contract did not cover accidents involving snowmobiles. After briefs were filed by the parties and argument was held, the court granted the motion by order of July 6, 1982. The insurance contract between the appellant and the appellee provides as follows: SECTION I PERSONAL INJURY PROTECTION COVERAGE In accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act, the Company will pay any or all personal injury protection for: (a) medical expenses, (b) work loss, (c) replacement services loss, (d) funeral expenses, and (e) survivor’s loss for bodily injury to an eligible person due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle. DEFINITIONS “Motor Vehicle” means any vehicle of a kind required to be registered under the Pennsylvania Vehicle Code. (Emphasis in original). This provision parallels the requirements of the Pennsylvania No-Fault Act. Accordingly, reference to the Pennsylvania Vehicle Code is necessary to establish whether the term “motor vehicle” encompasses snowmobiles. Section 102 of the 1976 Vehicle Code defines the terms “motor vehicle” and “vehicle”: “Motor vehicle. ” A vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails. “Vehicle. ” Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks. 75 Pa.C.S.A. § 102. These definitions are somewhat intertwined in that the definition of “motor vehicle” requires that the instrument or device in question be a “vehicle”. Construing these provisions in pari materia, and in conjunction with other provisions of the Vehicle Code which will be discussed infra we conclude that a snowmobile is a motor vehicle. To qualify as a vehicle, a snowmobile is required to be (1) a device, (2) in, upon or by which persons or property may be transported upon a highway. The term “device” is not defined by the Vehicle Code; however, according to the common and approved usage of the word, 1 Pa.C.S.A.App. § 1903(a), we unhesitatingly conclude that a snowmobile is a “device”. Moreover, the Vehicle Code makes it clear that a snowmobile may be transported upon a highway. The general rule is set forth at 75 Pa.C.S.A. § 7721(a), which states: “Except as otherwise provided in this chapter, it is unlawful to operate a snowmobile on any street or highway which is not designated and posted as a snowmobile road by the governmental agency having jurisdiction.” The exception is set forth at 75 Pa.C.S.A. 7722(a) which states: § 7722. Designation of snowmobile roads (a) General rule. — The Department of Transportation on State-designated highways and local authorities on any highway, road or street within its jurisdiction may designate any highway, road or street within its jurisdiction as a snowmobile road and may, in its discretion, determine whether such road shall be closed to vehicular traffic or whether snowmobiles may share this designated road with vehicular traffic. This statute authorizes the use of motor vehicles on designated streets and highway. As such, snowmobiles qualify as “vehicles” under the Vehicle Code in that they are devices which may be legally transported, albeit under limited circumstances, upon highways in this Commonwealth. Moreover, a snowmobile is a “motor vehicle” because it is a (1) vehicle, (2) which is self-propelled, (3) does not receive power from overhead wires, and (4) does not operate exclusively on rails or tracks. Consequently, a snowmobile is both a “vehicle” and a “motor vehicle” as defined by 75 Pa.C.S.A. 102. A snowmobile is also required to be registered under the Motor Vehicle Code. 75 Pa.C.S.A. § 7712. Thus, it ap pears that a snowmobile is potentially a “motor vehicle” under both the No-Fault Act and the terms of the insurance contract between appellant and appellee. The appellee argues that a snowmobile is not a motor vehicle on two grounds: (1) that a snowmobile cannot be used on a highway; and (2) that the Regulations interpreting the No-Fault Act specifically exclude snowmobiles. 31 Pa.Code § 66.1-103 C., 5 Pa.B. 897 (April 11, 1975). Having disposed of appellee’s first argument, we turn to the second. The appellee argues that the form of the insurance policy issued to the appellant was one required to be used by the Insurance Department; that it had been submitted to, and approved by, the Insurance Department, and further that the policy provides it is “[i]n accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act.” Consequently, it is asserted that the No-Fault Act, and the Regulations promulgated thereunder, were intended to be incorporated into the policy. The reference to the No-Fault Act has been duly noted, supra at 3; however conspicuous by its absence in the policy is any reference, expressed or implied, to the Regulations promulgated under the No-Fault Act. The Regulations are guidelines for the interpretation of the No-Fault Act. The definition found in the Regulations is not dispositive in the interpretation of a statutory phrase. Habecker v. Nationwide Insurance Company, 299 Pa.Super. 463, 470 n.6, 445 A.2d 1222, 1226 n.6 (1982). While the Regulations are often persuasive, we conclude that in the present case they do not mandate the exclusion of snowmobiles from coverage under the No-Fault Act. Alternatively, we would conclude that the Regulations, while affording a minimum standard for a No-Fault insurance policy, do not put a ceiling on specified amount or type of coverage. 31 Pa.Code § 66.101. “An insurance company is free, out of motives of altruism, generosity or naked commercial advantage, to provide broader coverage than the No-Fault Act, and if it does so, the policy language controls.” Drake v. Donegal Mutual Insurance Company, 422 F.Supp. 272, 274 (W.D.Pa.1976); 7 Blashfield Automobile Law and Practice, Section 2715, pp. 7-8 (3d ed. 1966). Our conclusion is, therefore, that a motor vehicle as defined by the No-Fault Act and by the insurance contract includes snowmobiles. Our analysis is not complete without an examination of the prior decisions of this court refining the definition of motor vehicle. In Siefert v. Nationwide Insurance, supra, we held that a trail bike, which was not equipped with a head lamp, tail lamp or horn, was not a “motor vehicle” for the purposes of the No-Fault Act. In Siefert, the panel’s analysis focused on the trail bike’s lack of equipment which would have been necessary for street use; equipment which was necessary for the bike to be registered. In Crawford v. Allstate Insurance Company, supra, we held that a pick-up truck, which was operating on railroad tracks by means of a special adapting device when it was involved in an accident, was a motor vehicle under the No-Fault Act. The truck in question was registered in Ohio, and had been used both prior to and subsequent to the accident on highways in this Commonwealth. This court dismissed the insurer’s argument that the accident was not covered by insurance because it occurred on railroad tracks and not on a highway, stating: “[W]e are of the opinion that the proper test in applying the ‘maintenance and use’ concept to individual fact situations is whether the injury is causally related to the use of a motor vehicle.” Id., 305 Pa.Super. at 173, 451 A.2d at 477. In Bills v. Nationwide Mutual Insurance Company, we held that a dune buggy which was unregistered and was not equipped with a rear lighting system, turn signals and hazard warning lights, a muffler or rear wheel shields (as required by the Vehicle Code) was not a “motor vehicle” under the No-Fault Act. In Bills, Judge Johnson, in a characteristically well-reasoned opinion, went beyond the Siefert analysis and further refined the Crawford analysis by looking to the stated findings and purposes of the No-Fault Act. In response to those findings and purposes, Judge Johnson stated: It seems reasonable to assert that our legislature did not have in mind that every conceivable injury arising from the use of any conceivable self-propelled vehicle where the accident might occur anywhere in the Commonwealth would résult in no-fault benefits under the Act. Even in Crawford, we were able to determine that the vehicle there involved had been used, from time to time, on the public highways. Appellees argue that since the dune buggy here involved could have been driven on the highway, and since it is self-propelled, it fits the definitions of “vehicle” and “mo tor vehicle” contained in the Vehicle Code. With this proposition, we readily agree. See 75 Pa.C.S.A. § 102. As appellees point out in their Brief, however, the issue remains whether this dune buggy is a vehicle “of a kind required to be registered under [the Vehicle Code].” We need not decide, nor do we attempt to determine, whether some other dune buggy, differently equipped or put to some other use, might fit within the ambit of the No-Fault Act. We here merely hold that an uninsured, unregistered vehicle which upon assembly lacks a substantial portion of the minimum equipment required for registration in this Commonwealth and which at the time of the accident continuously has been operated exclusively off of public highways without such required equipment, is not “a vehicle of a kind required to be registered under [the Vehicle Code],” (Footnote omitted) Bills v. Nationwide Mutual Insurance Company, id., 317 Pa.Super. at 194-95, 463 A.2d at 1151-52. We find Judge Johnson’s observation especially relevant herein. Snowmobiles, while registered under the Vehicle Code, and potentially usable on highways in this Commonwealth, are not vehicles which are principally used on Commonwealth highways. Rather, they are more often operated on private lands and private roads. We do not believe that the legislature intended that coverage be provided for vehicles which are principally off-road vehicles when they are being operated other than on Commonwealth highways. With this in mind, we would hold that under the No-Fault Act snowmobiles are motor vehicles, but that coverage under the Act is provided only when the accident occurs on a public road, street or highway, which has been designated and posted as a snowmobile road by the government agency having jurisdiction, and when the vehicle is registered and has the equipment mandated by statute. On the state of the record before us, we cannot determine whether these requisites have been met. Consequently, the case must be remanded to the trial court to determine the registration status of the vehicle, how it was equipped and most importantly, the situs of the accident. The order of the trial court granting judgment on the pleadings is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq. . The policy provision defining "motor vehicle” suffers from a defect similar to that in the corresponding provision in the No-Fault Act, 40 P.S. § 1009.103, in that it is not apparent whether reference is made to the 1959 Vehicle Code or the 1976 Vehicle Code. Previous panels of this court have referred to the 1976 Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81; 75 Pa.C.S.A. § 101, etseq., when construing the term motor vehicle. Bills v. Nationwide Mutual Insurance Company, 317 Pa.Super. 188, 191 n. 3, 463 A.2d 1148, 1150 n. 3 (1983); Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 171 n. 1, 451 A.2d 474, 476 n. 1 (1982); Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 432 A.2d 1101 (1981). We likewise conclude that the 1976 Vehicle Code is the logical reference point. . “device ... e. a piece of equipment or a mechanism designed to serve a special purpose or perform a special function.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1961). . § 7712. Registration of snowmobiles (a) General rule. — Upon application therefor upon a form prescribed and furnished by the department which shall contain a full description of the snowmobile, the actual and bona fide name and address of the owner, proof of ownership and any other information the department may reasonably require, and which shall be accompanied by the required fee, the department shall issue a certificate of registration of a snowmobile and a decal showing the expiration date to the owner. . The cited Regulations stated in the definitional section: " 'Motor Vehicle’ — Motor Vehicle means a vehicle of a kind required to be registered under the Vehicle Code and shall not include: ... (f) snowmobiles.” 31 Pa.Code § 66.1-103C.(f) It is interesting to note that Section 66.1 has been amended to read: " 'Motor Vehicle’ A vehicle of a kind required to be registered under the Vehicle Code (75 Pa.C.S.A. §§ 101-8122). 31 Pa.C. § 66.1, 10 Pa.B. 3656 (September 13, 1980). . § 1009.102 Findings and purposes (a) Findings. — The General Assembly hereby finds and declares that: (1) motor vehicles are the primary instrumentality for the transportation of individuals; (2) the transportation of individuals by motor vehicle over Commonwealth highways and other highways significantly affects interstate commerce, particularly in metropolitan areas; (3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce; (b) Purposes. — Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims. (Emphasis added). . See 75 Pa.C.S.A. § 7721 (operation on streets and highways); 75 Pa.C.S.A. § 7741 (requiring head lamp and tail lamp); 75 Pa.C.S.A. § 7742 (requiring brakes); and 75 Pa.C.S.A. § 7743 (requiring a muffler)

KELLY, Judge. In this appeal, appellant, Accu-Weather, Inc. (Accu-Weather), asks us to determine whether the Centre County Court of Common Pleas properly ordered summary judgment in favor of appellee, CRB of Westchester, Inc. (CRB). We hold that because CRB’s notice of termination does not strictly comply with the notice provisions of the agreement, it does not constitute legal notice. Further, a genuine issue of material fact exists as to whether Accu-Weather had adequate actual notice of termination of the agreement. Accordingly, we reverse the order of summary judgment in favor of CRB and remand for further proceedings. The relevant facts and procedural history are as follows. On August 22, 1986, Accu-Weather entered into a written agreement with Prospect Communications, Inc. (Prospect), under which Accu-Weather agreed to provide weather information service for Prospect in connection with the radio station WFAS. The duration of the service was clearly set forth in the agreement, which provided: 27. This Agreement shall remain in full force and effect for a period of two (2) years beginning on the 16th day of August, 1986, and it shall renew and continue in full force and effect for subsequent periods of two years each unless written notice of termination is received by one party from the other party at least one-hundred-twenty (120) days prior to the initial expiration date hereof or of any subsequent expiration date. Time is of the essence in this paragraph. (Accu-Weather Exclusive Radio Service Agreement, 8/22/86 at 5.) On February 20, 1990, Accu-Weather acknowledged and agreed to the assignment of all contractual rights and duties from Prospect to CRB. On March 7,1990, Accu-Weather and CRB signed a written addendum to the June, 1986 agreement which extended the agreement to August 15,1992, and provided that subsequent renewals would occur pursuant to provision 27 of the original June, 1986 agreement. However, by letter dated February 20, 1991, CRB attempted to terminate the agreement as follows: This is to serve you notice to cancel our contract with you, effective 90 days from February 1, 1991 (our 1st conversation). Due to the reorganization of the statiQn and market condition, we are forced to take this step, but at a later date, we may continue your services. (CRB’s Letter of 2/20/91.) Accu-Weather rejected CRB’s notice of termination and responded on February 25, 1991, stating in part: ... We are not in a position based on your telephone conversation or on your letter to honor a cancellation effective 90 days from February 1, 1991. Such a cancellation on or about May 1st is not in accord with contract terms and does not relate to any contract date for ending of service. The contract currently runs through August 15, 1992 and proper notification would be required to end it at that time.... (Accu-Weather’s Letter of 2/25/91) (emphasis added). CRB did not cease performance under the 1986 agreement on May 1, 1991 but continued to perform within the terms of the agreement. However,. on June 1, 1992, CRB notified Accu-Weather of its intent to terminate at the next expiration date of the agreement, August 16, 1992. The notice referenced the letter of February 20, 1991 and purported to confirm the earlier attempted notice of termination given at that time. On June 18, 1992, Accu-Weather indicated that it would not accept CRB’s June 1, 1992 notice of termination because it did not comply with the requirement that notice be given one hundred and twenty days prior to the expiration of the agreement. Additionally, Accu-Weather stated that the alleged notice of February 20, 1991 was ineffective and could not terminate the agreement at its August 16, 1992 expiration date. CRB ceased performance on the contract as of August 16, 1992. In response, Accu-Weather filed a complaint against CRB alleging breach of contract. Accu-Weather argued that effective notice of termination had not been give one hundred and twenty days prior to the expiration date of the agreement. Therefore, the agreement automatically renewed and continued until August 15, 1994. CRB filed a motion for summary judgment on June 8, 1993. After review of the pleadings and affidavits, the trial court concluded that no genuine issue of material fact existed as to whether CRB had given Accu-Weather notice to terminate the agreement. Moreover, the trial court stated that, as a matter of law, the notice of termination was timely and proper. Therefore, the trial court entered the order for summary judgment on September 1, 1993, in favor of CRB. AccuWeather’s timely appeal followed. Accu-Weather presents the following issues for our review: 1. WHETHER IN A BREACH OF CONTRACT ACTION SUMMARY JUDGMENT MAY BE GRANTED FOR THE DEFENDANT BASED UPON ITS NOTICE OF TERMINATION OF A CONTRACT, WHICH NOTICE DOES NOT COMPLY STRICTLY WITH THE CONTRACTUAL PROVISIONS FOR SUCH NOTICE AND IS VAGUE AND AMBIGUOUS? 2. WHETHER THE LOWER COURT SHOULD HAVE APPLIED NEW YORK LAW? 3. WHETHER SUMMARY JUDGMENT MAY BE GRANTED FOR THE DEFENDANT IN A BREACH OF CONTRACT ACTION BASED UPON A NOTICE OF CANCELLATION WHERE, IN RESPONSE TO THE PLAINTIFF’S OBJECTION TO THE NOTICE, THE DEFENDANT, BY ITS CONDUCT, WITHDRAWS THE NOTICE BY ACTING DIRECTLY CONTRARY THERETO FOR A YEAR AND A HALF, BY PERFORMING THE CONTRACT? Accu-Weather’s Brief at 2. The scope of appellate review of a grant of summary judgment involves the following principles. First, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, must demonstrate that there exists no genuine issue of fact. Pa.R.C.P. 1035(b). Second, the moving party must be entitled to judgment as a matter of law. Id. The moving party has the burden of proving that no genuine issue of material fact exists. Overly v. Kass, 382 Pa.Super. 108, 111, 554 A.2d 970, 972 (1989). However, the non-moving party may not rest upon averments contained in its pleadings; the non-moving party must demonstrate that there is a genuine issue for trial. Id. The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 558, 618 A.2d 945, 950 (1992), appeal denied, 536 Pa. 630, 637 A.2d 290 (1993) (citing Kerns v. Methodist Hosp., 393 Pa.Super. 533, 536-37, 574 A.2d 1068, 1069 (1990)). Finally, an entry of summary judgment is granted only in cases where the right is clear and free of doubt. Ducko v. Chrysler Motors Corporation, 433 Pa.Super. 47, 48, 639 A.2d 1204, 1205 (1993) (citing Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989)). We reverse an entry of summary judgment when the trial court commits an error of law or abuses its discretion. Kelly by Kelly v. Ickes, 427 Pa.Super. 542, 547, 629 A.2d 1002, 1004 (1993) (citing Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991)). Accu-Weather first contends that summary judgment should not have been entered in favor of CRB based upon the February, 1991 notice of termination. Accu-Weather asserts that the notice was vague and ambiguous and did not comply strictly with the contractual provision. Accu-Weather suggests that CRB’s subsequent performance under the agreement negated the notice of termination. We agree. In Pennsylvania, conditions precedent to a contract termination must be strictly fulfilled. Wright v. Bristol Patent Leather Co., 257 Pa. 552, 556, 101 A. 844, 845 (1917); Virginia Heart Institute Ltd. v. Northwest Pennsylvania Bank & Trust Co., 448 F.Supp. 215, 220 (W.D.Pa.1978). Additionally, notice to terminate a contract must be clear and unambiguous. Eastern Milk Producers Co-op Ass’n, Inc. v. Lehigh Valley Co-op Farmers, 568 F.Supp. 1205, 1207 (E.D.Pa.1983) (citing Maloney v. Madrid Motor Corp., 385 Pa. 224, 228, 122 A.2d 694, 696 (1956)). “Ambiguous conduct and language intended to signal contract termination will be deemed not to have terminated the contract.” Id. The notice of February 20, 1991 did not comply with provision 27 of the agreement for several reasons. First, the provision explicitly stated that the agreement would not terminate prior to the expiration date which, at that time, was August 15, 1992. However, CRB attempted to terminate the agreement as of May 1, 1991, over a year before the term of the agreement was to expire, in contravention of provision 27. Upon receiving CRB’s alleged notice of termination on February 20, 1991, Accu-Weather responded, in writing, unequivocally rejecting the notice and clearly setting forth the conditions under which the agreement could be terminated. CRB did not strictly comply with the conditions required to terminate the agreement. Second, even if we were to consider the February 20, 1991 notice timely for purposes of terminating the agreement on the August 15, 1992 expiration date, the notice of termination would still fail as unclear and ambiguous. The language of CRB’s February 20, 1991 notice creates ambiguity. Although it refers to termination, the notice gives no indication that it will apply to the August, 1992 expiration date of the agreement if not to an earlier date. On the contrary, the notice specifically states that the termination is to apply in “ninety days.” Moreover, the notice continues, at some later date, Accu-Weather’s services may be “continued.” This statement fails to manifest a clear intent to terminate the agreement and constitutes ambiguity in the notice. Third, ambiguity is also evident in CRB’s continued performance after the notice of termination. When CRB attempted to terminate the agreement as of May 1, 1991, Accu-Weather rejected the notice and demanded strict compliance with the contract terms. Therefore, in reviewing the record in the light most favorable to the non-moving party, CRB’s subsequent performance may be construed as an attempt to correct an anticipatory breach and as a withdrawal of the February 20, 1991 notice of termination. See Kleiman, et ux. v. Cohen, 98 Pa.Super. 61, 64 (1929) (notice of an intent to breach, if not accepted, may be withdrawn at any time before performance is due). At the very least, CRB’s subsequent performance is conduct inconsistent with respect to a clear intent to terminate the contract. Hence, CRB’s continued performance in conjunction with its February 20, 1991 notice of termination constituted a message that was both mixed and ambiguous. We hold, therefore, that under the relevant contract provision, Accu-Weather did not have legal notice of termination. A conflict of testimony upon the controlling question in the case is a question of fact and one for the jury to determine. Berwick Hotel Co. v. Vaughn, 300 Pa. 389, 395, 150 A. 613, 616 (1930). An agreement prohibiting non-written modification may be modified by a subsequent oral agreement if the parties’ conduct clearly shows an intent to waive the requirement that amendments be in writing. Douglas v. Benson, 294 Pa.Super. 119, 127, 439 A.2d 779, 783 (1982). Further, even though the time fixed in an agreement is stated to be “of the essence,” it may be waived by the conduct of the parties. Warner Co. v. MacMullen, 381 Pa. 22, 29, 112 A.2d 74, 78 (1955). A central question in this case remains whether AccuWeather had adequate actual notice of CRB’s intent to terminate the agreement. The record reveals conflicting testimony on whether CRB gave Accu-Weather oral notice of termination subsequent to CRB’s initial effort to terminate the agreement in February, 1991. CRB asserts in the affidavit of its business manager that, through oral communications following the notice of February 20, 1991, CRB continuously evidenced an intention to terminate the agreement at its next expiration date, August 16, 1992. However, in its affidavit submitted pursuant to Pa.R.Civ.P. 1035(e), Accu-Weather denies that any oral communications occurred in which CRB advised Accu-Weather of a continued desire to terminate the agreement at the next expiration date. Therefore, a genuine issue of material fact exists, i.e. whether CRB evidenced a continued notice of intent to terminate the agreement follow ing the rejected notification of February 20, 1991. Thus, the trial court erred in entering summary judgment in favor of CRB as that right is not clear and free of doubt. Accordingly, we reverse and remand for proceedings consistent with this opinion. Order entering summary judgment reversed and remanded for further proceedings. . Prospect was dissolved January 14, 1987. . Accu-Weather filed an affidavit pursuant to Pa.R.Civ.P. 1035(e) on August 3, 1993 alleging that a genuine issue of material fact exists as to whether CRB presented notice of termination. . We note that the notice of June 1, 1992 did not legally terminate the agreement under provision 27. The notice of that date was given only seventy-six days prior to the natural expiration date of the agreement, and, therefore, did not conform to the one hundred and twenty day requirement for termination. . Accu-Weather also claims that the trial court erred by applying New York law’s erroneous date rule. See G.B. Kent & Sons, Ltd. v. Helena Rubinstein, Inc., 47 N.Y.2d 561, 393 N.E.2d 460, 419 N.Y.S.2d 465 (1979) (notice of termination may be valid notwithstanding the fact that the notice specifies the "wrong date” for termination). Even if Pennsylvania law recognized this rule, the notice of termination would still fail as unclear and ambiguous. . Provision 24 of the contract provides that "no modifications to the agreement shall be made except by written addendum signed by both parties hereto." (Accu-Weather Exclusive Radio Service Agreement, 8/22/86 at 5). Whether subsequent oral communications modified the agreement and permitted CRB to terminate the contract is a question of fact. See Douglas v. Benson, supra. . The affidavit of CRB business manager, Bipin Shah, in support of the motion for' summary judgment, states in part: ... Thus, during numerous telephone conversations with AccuWeather employees throughout 1991 and the first half of 1992, I reminded Accu-Weather, when appropriate, that it was WFAS’ intention that the Agreement terminate in August of 1992. Similarly, upon information and belief, Mr. Gary Starr, the station manager, also advised Accu-Weather on a number of occasions that WFAS would treat the Agreement as terminated as of August 1992.... (CRB’s Affidavit in Support of Summary Judgment, 6/3/93 at 3.) . The affidavit of John G. Milakovic, pursuant to Pa.R.Civ.P. 1035(e), states in part: ... In Defendant’s ("CRB”), supporting papers to its motion for summary judgment, Mr. Bipin Shah swears to the alleged fact that he had a number of conversations with unnamed Accu-Weather employees, wherein he allegedly orally advised these unnamed persons that CRB desired to terminate its contract with Accu-Weather in August 1992. As noted in the affidavit of Barry L. Myers submitted in opposition to CRB’s motion for summary judgment, Accu-Weather has no record of any such conversation ever occurring---- (Accu-Weather’s Affidavit Pursuant to Pa.R.Civ.P. 1035(e), 8/3/93 at 1.)

OPINION OF THE COURT McDERMOTT, Justice. The appellee, Carl Macolino, was found guilty of possession of a controlled substance with intent to deliver, and criminal conspiracy, following a non-jury trial. At the same trial, appellee’s wife, Gae, was found guilty of criminal conspiracy. Carl Macolino, following the denial of post-trial motions, was sentenced to a prison term of eleven-and-one-half months to twenty-three months on the possession offense, and a consecutive sentence of three years probation on the conspiracy charge. Gae Macolino was sentenced to two years probation on the conspiracy charge. The sole issue confronting this Court is whether the Superior Court erred in reversing the trial court’s judgment of sentence against Carl Macolino. The Superior Court, 302 Pa.Super. 96, 448 A.2d 543, held that the Commonwealth failed to produce sufficient evidence to establish that appellee was in constructive possession of the controlled substance, since his wife could also have had possession of the drug. We find that the Superior Court did err, and we reverse. The underlying facts of this case are as follows: Armed with a search warrant, police searched the appellee’s home on October 29, 1979. In the first floor dining room, the police seized various items linking Carl and Gae Macolino together as a couple, including bank checks, deposit slips, a bank passbook in both their names and photographs of the couple. Large sums of money were also seized. In the master bedroom which was equipped with a double bed, there was a clothes closet with the clothing of both a man and woman. (R. 39). On the top shelf of the closet police seized two plastic bags containing a white powder, testified at trial to be thirty-percent cocaine. Two smaller plastic packages were found in the closet as well, containing what was testified to be two percent cocaine, along with a Tupperware container holding four empty plastic bags. Copies of “The Pleasures of Cocaine” and “The Pill Book” were seized from a bookshelf in the bedroom. On top of the bedroom dresser, the officers seized a pocket memo book, containing pages of numbers, a machine called a “Daisy Seal-a-Meal”, an appliance used in the drug trade to seal packages of cocaine in order to prevent seepage of the drug, and a device used to detect eavesdropping equipment on a telephone called an “Eavesdropper Stopper.” In the attic, police seized two one-pound containers of manitol, a substance used as a cocaine “cutting” agent. The appellee did not testify, nor did he offer any defense. The trial court convicted the appellee, concluding that possession was established from the totality of the circumstances. Both defendants appealed the judgments of sentence. The judgments of sentence were reversed by the Superior Court, with Judge Watkins dissenting. The Commonwealth appeals the reversal of the judgment of sentence as to appellee Carl Macolino on the possession charge. In reviewing a case where the sufficiency of the evidence produced is contested the test is “whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reason able inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979). Certainly one of the elements which had to be proven by the Commonwealth was knowing or intentional possession of the cocaine. 35 P.S. § 780-113(a)(16). Possession can be proven by showing actual possession, i.e., a controlled substance found on the appellee’s person, or by showing that the appellee constructively possessed the drug. Since the cocaine was found in the appellee’s bedroom, and not on his person, the Commonwealth had the burden of proving that he had constructive possession of the drug. Constructive possession has been defined as the ability to exércise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control. Commonwealth v. Chenet, 473 Pa. 181, 184, 373 A.2d 1107, 1108 (1977); Commonwealth v. Fortune, 456 Pa. 365, 368, 318 A.2d 327, 328 (1974); Commonwealth v. Sterling, 241 Pa.Super. 411, 415, 361 A.2d 799, 804 (1976). See also, Commonwealth v. Townsend, 428 Pa. 281, 284, 237 A.2d 192, 194 (1968). An intent to maintain a conscious dominion may be inferred from the totality of the circumstances. Commonwealth v. Fortune, supra, 456 Pa. at 369, 318 A.2d at 329; Commonwealth v. DeCampli, 243 Pa.Super. 69, 75, 364 A.2d 454, 56 (1976); Commonwealth v. Cash, 240 Pa.Super. 123, 128, 367 A.2d 726, 729 (1976). Further, circumstantial evidence may be used to establish a defendant’s possession of drugs or contraband. Commonwealth v. Bentley, 276 Pa.Super. 41, 46, 419 A.2d 85, 87 (1980). See also, United States v. Raysor, 294 F.2d 563 (3rd Cir.1961); United States v. Jones, 492 F.2d 239 (3rd Cir.1974) on remand 404 F.Supp. 529 (E.D.Pa.1975) aff'd 538 F.2d 321 (3rd Cir.1976). The Superior Court insisted that the appellee’s wife had equal access to the drugs, and that the inference was “just as strong that the drugs belonged to her as to her husband.” 302 Pa.Super. at 99, 448 A.2d at 545. In its reversal, though, the Superior Court ignored its per curiam decision in Commonwealth v. Gilchrist, 255 Pa.Super. 252, 386 A.2d 603 (1978) which involved a conviction for possession of a controlled substance under almost identical facts. In that case: [T]he Appellee resided in the apartment with his wife and children. He was present in the apartment at the time of the search. The contraband was found in plain view in a box on the mantle in the bedroom, and also in dresser drawers, which contained men and women’s clothing. Appellee had easy access to the contraband. 255 Pa.Super. at 254-55, 386 A.2d at 604. The Superior Court reversed an order arresting judgment of sentence against the appellee/husband, holding: The Commonwealth was not bound to prove that appellee exerted more control over the premises than his wife, but rather, that he exerted joint control, and had equal access both to the apartment and the contraband. 255 Pa.Super. at 255, 386 A.2d at 605. The court found the fact that the drugs were found in the bedroom to-be of special significance, noting that a bedroom is “a more private place with limited access and usually subject to the exclusive control of the owner or lessee of the premises.” Id., 255 Pa.Superior Ct. at 255, 386 A.2d at 605. See also, Commonwealth v. DeCampli, supra, 243 Pa.Super. at 75, 364 A.2d at 456-57. (“An accused may be charged with the knowledge of the location of the contraband, which is essential to the proof of an intent to exercise control, if the contraband is found in places peculiarly within the control of the accused.”) This Court has not confronted the precise issue of constructive possession of a drug or contraband seized in an area jointly controlled by a husband and wife. However, other jurisdictions have, deciding, as we do today, that constructive possession can be found in one defendant when both the husband and wife have equal access to an area where the illegal substance or contraband is found. For example, State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974), involved marijuana found in the closet and dresser drawer of a bedroom shared by a defendant and his wife. Only the couple was present at the time of the search. The North Carolina Court held that a jury could infer that the husband was in constructive possession of the illegal substance. See also, U.S. v. Bridges, 419 F.2d 963 (8th Cir.1969); Wale v. State, 397 So.2d 738 (Fla.App. Dist. 4 1981); Lindsay v. Commonwealth, 500 S.W.2d 786 (Ky. 1973) (stolen cigarettes found in an office used by both the defendant and his wife); State v. Chakos, 74 Wash.2d 154, 443 P.2d 815 (1968); cert. denied sub nom Christofferson v. Washington, 393 U.S. 1090, 89 S.Ct. 855, 21 L.Ed.2d 783 (1969); Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App. 1976); Eckhart v. Commonwealth, 222 Va. 447, 281 S.E.2d 853 (1981); Villegas v. State v. Texas, 509 S.W.2d 314 (Tex.Cr.App.1974) (involving drugs found in residence where two brothers who lived together). In reversing the trial court’s finding that Carl Macolino had constructive possession of the cocaine, the Superior Court relied upon four of our decisions. However, the factual setting of this case is distinguishable from each of those cases. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971), involved a defendant who was a mere visitor to the building in which stolen dresses were seized. His paramour, not a defendant, had the only key to the locked cupboard where the contraband was discovered. In Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971), marijuana cigarette butts were in a living room where seven persons were having a party, all having equal access to the illegal substance. In Commonwealth v. Fortune, supra., four guests and the defendant were present at the time of the raid where heroin was found in the defendant’s residence, the guests being closer in proximity to the heroin. Commonwealth v. Chenet, supra., focused on a trailer where police found marijuana. A roommate of the defendant and the roommate’s girlfriend were present when the officers arrived; the defendant arrived later. This Court reversed the conviction, holding that no reasonable inference could link the defendant to the marijuana, over the roommate and/or the roommate’s girl friend. The facts of this case involve a husband and wife who had joint and exclusive control of a residence, who alone were present at the time of the police search, in conjunction with other evidence sufficient to establish a link between Carl Macolino and the illegal substance. Viewed in a vacuum, all of the items found in the bedroom of Carl and Gae Macolino were, in and of themselves, innocent possessions. A Daisy-Seal-A-Meal can seal leftover string beans, as well as prevent the seepage of cocaine — although the former is not usually done in the bedroom. It is not illegal to possess or read “The Pleasures of Cocaine” or “The Pill Book.” Nor is it illegal to own a device which detects when a telephone is being tapped. Manitol, alone, is not an illegal substance. However, specific items of evidence are not viewed in a vacuum, separately and distinctly. A fact-finder looks at evidence as a total package. In this case, the fact-finder, examining all of the evidence in its totality, could reasonably conclude that the appellee was aware of the cocaine, along with the items found in his bedroom which are commonly used in cocaine use and trafficking, that he exercised a conscious dominion over the illegal substance and that he intended to possess it. It is no defense that the appellee’s wife could also have maintained a conscious dominion over the cocaine. Possession of an illegal substance need not be exclusive; two or more can possess the same drug at the same time. See Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974). Based on the foregoing evidence, it was reasonable for the fact-finder to conclude that the appellee maintained a conscious dominion over the cocaine found in the bedroom closet which he shared solely with his wife. Therefore, the Superior Court erred in disturbing the finding of the trial court that there was sufficient evidence to establish possession on the part of defendant Carl Macolino. Allowing the Superior Court order to stand would provide a privileged sanctuary for the storage of illegal contraband. Simply by storing contraband in a place controlled by more than one party, a spouse, roomate, partner, would render all impervious to prosecution. The Order of the Superior Court is reversed and we remand to the Superior Court to dispose of appellee’s remaining contentions. LARSEN, J., concurs in the result. . Act of April 14, 1972, P.L. 233, No. 64, § 13, 35 P.S. § 780-113(a)(30). . Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 903. . The reversal of the conspiracy convictions against both husband and wife have not been appealed by the Commonwealth. . One of the officers at the scene of the search was qualified at trial as an expert in drug law enforcement and testified as to what was seized, and the utility of the items in the drug trade. (R. 47-48.)

The opinion of the court was delivered by Strong, J. The plaintiff below brought suit to recover damages for a breach of a parol contract, by which the defendant engaged to employ him to cultivate a farm upon shares. The only questions raised in this court relate to the proper measure of damages. The plaintiff having, through the alleged default of the defendant, failed in obtaining the' employment, the learned judge of the Common Pleas instructed the jury, that his damages were to be measured by what he could have made on the farm, and that besides these, they might allow him damages for violation of faith. This instruction, it .is contended, was erroneous. There are few subjects more difficult than the proper rule by which damages are.to be.estimated.. It is often said that in actions founded upon contracts, the rule is compensation. But this practically amounts to very little. What is compensation? In many contracts, the parties have themselves fixed the measure. In many others, the contract furnishes no standard, and it is impossible to prescribe any general rule,, which shall in all cases give to a plaintiff" a precise equivalent for what he would have enjoyed, if the contract had not been violated. Without attempting to deduce from adjudicated cases any rule of universal application, it may suffice, for the present, to refer to a few principles that seem to be supported by the better authorities. While it is well settled, that a jury are not at liberty to allow mere speculative damages, yet there are cases in which a plaintiff has been held entitled to what' he would have made had'the contract been fulfilled: I mean, to what he would have made immediately out of the contract. The loss of such profits is not consequential, in the sense in which consequential damages are sometimes said to be too remote. They are in the immediate contemplation of the parties when the contract is made. • Thus, in' contracts for the sale and delivery of goods at a designated time or place, the damages are measured by the price of the goods :on the day named, or at the place specified, if there be a failure on the part of the vendor. This is, in effect, making him responsible for profits. This subject has received a very thorough discussion in New York, in Masterton v. The Mayor of Brooklyn, 7 Hill 62. That was a case in which the plaintiffs had agreed to furnish marble for the City Hall of Brooklyn, for which the defendants agreed to pay as the work progressed. After a portion of the marble had been delivered, the defendants refused to receive any more, and the plaintiffs brought covenant for a breach of the contract. They were allowed to recover the profits they would have made from the actual performance of the contract. The court, while denying the .right of the plaintiffs to remote and contingent damages, or to profits of collateral enterprises, in which they might have been induced to engage on the faith of the contract with the defendants, remarked that, “ profits or advantages, which are the direct and immediate fruits of the contract entered into between the parties, stand .upon a different footing. They are part an'd parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the enjoyment of any other stipulation.” This is also the doctrine of Fox v. Harding, 7 Cush. 516; Railroad Company v. Howard, 13 How. 307; Cook v. The Commissioners of Hamilton, 6 McLean C. C. Reps. 612; Richardson v. Mellish, 2 Bingh. 229. So also, it is held in this state, that in an action for a breach of a covenant, to sell land, a plaintiff is entitled to recover damages for the loss of his bargain, beyond the money paid with interest, unless the breach of the covenant has not been in consequence of the fraud or bad faith of the vendor: Bitner v. Brough, 1 Jones 127. Indeed, the principle does not appear to have been denied. The contest in the reported cases has been, whether the loss of the bargain is not a proper subject to enter into the estimate of damages, even where there was no fraud or breach of faith. In McClowry v. Croghan’s Administrator, 7 Casey 22, the measure of damages for the breach of a contract to lease, was declared to be the same as for a breach of a contract to sell; as indeed it must be, for a lease is but a partial sale, the rent being the consideration; We cannot say, therefore, that the jury were misled in this case by being told that the damages of the plaintiff would be measured by what he could haye made.on the farm. This was but another mode of saying, that he was entitled to the value of his bargain. The worth of that was what it would have yielded, deducting, of course, the value of the labour necessary to be bestowed. But we think there was error in charging the jury that “ besides allowing these damages” (wha.t the plaintiff could have made on the farm), they might also allow damages.“for violation of faith.” This is something more than compensation. It is an allowance of vindictive damages,- which' is not permitted in actions for a breach of contract, with very rare exceptions, perhaps in none, except the single case of breach of.promise of marriage. The violation of most contracts involves a breach of faith. If a promissor must respond in damages for that as well as .for his violation of his promise, he must make duplicate satisfaction. The learned judge was led into the mistake by a dictum of Judge Rogers, in Holler v. Weiner, 3 Harris 242. In that case, there was no question raised respecting the constituents of the damages. The contest was in regard to the plaintiff’s right to recover any particular damage which, he had suffered. The doubt was whether there was any evidence of any damage. Judge Rogers, in delivering the opinion, after having shown what was the contract and how it had been violated, remarked, “ This is an obvious wrong, for which the plaintiff is entitled to damages, as well for the breach of the contract as for the violation of faith.” To hold that it was intended by this to warrant the recovery of damages for breach of faith, in addition to those which result from violation of the contract, would be a perversion of the meaning of the judge. His only purpose was to show that some damages were recoverable, and the ground was either breach of the contract, or its synonym — violation of faith. The case, therefore, does not sustain the instruction which was given to the jury in the present action. The judgment is reversed, and a venire de novo awarded.

Mr. Justice Sharswood delivered the opinion of the court, January 6 th 1876. There can be no doubt that if this case stood upon a general arbitration clause in the policy alone, it would fall within the principle settled by this court, conformably to all the previous English authorities, in Gray v. Wilson, 4 Watts 41 ; Snodgrass v. Gavit, 4 Casey 224, and Lauman v. Young, 7 Id. 310; that it is not in the power of the parties to a contract to oust the courts of their jurisdiction. The cases in which the certificate or approbation of any particular person — as the engineer of a railroad company — to the amount of a claim, is made a condition precedent to an action, rest upon entirely different principles. He is not created a judge or arbitrator of law and facts, but simply an appraiser of work done : Monongahela Nav. Co. v. Fenton, 4 W. & S. 205; Lauman v. Young, 7 Casey 306. In all these cases there is an actual reference, founded upon consideration, and therefore irrevocable. That which is before us, is a mere agreement to refer to arbitrators to be chosen at a future time. Such an agreement, like any other agreement of reference, is revocable, though the party may subject himself to an action of damages for the revocation. It is not in the power of parties thus to oust the courts of their general jurisdiction, any more than they have to add to a personal covenant, that they are not to be responsible for a breach of it: Furnivall v. Coombes, 5 Mann. & G. 736. The Supreme Court of the United States have recognised the soundness of this general principle in Insurance Co. v. Morse, 20 Wallace 445, in which they held that an agreement by a foreign insurance company, in conformity with a state statute, that if sued in a state court they would not remove the suit into the Federal court, was invalid. The contention, however, here is, that the special provision added in this policy to the arbitration clause, distinguishes this case from those cited. It declares that “no action, suit, or proceedings at law or in equity, shall be maintained on this policy, unless the amount of loss or dispute as aforesaid shall have been first thus ascertained.” If, however, it was not in the power of the parties to oust the courts of their general jurisdiction, by such an agreement, that clause does not help them. Had a general arbitration clause been valid, it would have been a condition precedent to an action of itself; the provision in question is but the expression of that which was implied. We are not to be understood as holding that this provision of the policy, which is special, not general, is entirely without effect. By its terms it was confined to “any difference or dispute that should arise between the insured and the company, touching the amount of any loss or damage.” But then it was incumbent on the defendants below, in order to avail themselves of it, to show that a dispute had arisen touching the amount of the loss. In other words, they must show that they admitted the validity of the policy, and their liability under it, and that the only question was as to the extent of the loss. An examination of the case of Scott v. Avery, 5 House of Lords Cases 827, so much relied on by the defendants in error, will show that a majority of the opinions there went upon the ground that -it was a special, not a general arbitration, which was intended. The power to oust the courts of their general jurisdiction was expressly repudiated. Nothing of the kind appeared on the trial here; on the contrary, it rather seemed, from an offer of evidence made by the plaintiff, objected to by the defendants, and rejected, that one ground of defence was, that there had been a breach of one of the conditions .of the policy, by the non-endorsement of another insurance, which avoided the contract altogether. Parties may agree that when the dispute is of the character of an account involving the examination of books, and the value of a large number of things, and the' extent of the damage, it shall be determined by three men as appraisers in effect — a much more appropriate tribunal for such a controversy than a jury. Judgment reversed and procedendo awarded.

The opinion of the court was delivered, by Lowbxe, C. J. On account of the immense importance of this case to the city of Philadelphia, we all consented to sit together at the hearing of this motion for a preliminary injunction, hoping that we might thus bring to a speedy termination this very unpleasant difficulty. We have heard and carefully considered the ca-se, and now proceed to pronounce the judgment of the law upon it, without expressing any opinion upon the merits or demerits of any of the parties to it, beyond what is necessary to the decision of the very point of the controversy. We shall neither approve nor disapprove here what we have no authority to judge. Some objections were made to some of the minor details of the bill, but we say nothing about them, for they may be amended at any time, and it is sufficient, on this motion, that the' main features of the case are so fully set forth in the bill and affidavit as to justify the motion. It is clearly alleged and shown that there are two bodies which claim to be regularly organized as the Common Council of the city, and each is proceeding to act as such, to the great detriment of the public interests. This is the wrong that is to be remedied. One or the other party must be wrong : they cannot both be regular. 1. Have the courts authority to' redress this wrong? We think they have. All bodies, except the supreme legislature, are under law, and, therefore for all transgression of law, are subject to the authority of the judicial power established by the constitution. The corporation itself is subject to this authority, in so far as its acts are directed by law; though it is not, and cannot be so in so far as it is itself a law-making power. In so far as its judgment and direction are uncontrolled by the law of the land, it is free from the control of the courts; but in so far as its acts are directed by law, it is subject to the judicial authority. Much more, then, are all its officers subject to this authority, and especially those that pretend to act as its officers without right, and as there cannot be two common councils, one of these bodies must be a mere pretender to the right to act as such. 2. May the wrongful body be restrained from acting by means of the equity remedy of injunction ? We think it may. This remedy extends to all acts that are contrary to law, and prejudicial to the interests of the community, and for which there is no adequate remedy at law; and we can hardly imagine any act that more clearly falls within this description than one that casts so deep a shade of doubt and confusion on the public affairs of a city as this does. In such a case, no remedy is adequate that is not prompt and speedy, and we know of no other remedy that is so prompt and speedy as this one. If a private partnership or corporation were to fall into a similar confusion, affecting all its members and all its creditors, we can think of no better remedy than this for staying the confusion that would be caused by two opposite parties pretending to act as the society. It is the very remedy usually adopted when churches divide into parties, and we applied it in three such cases in the last year. Therein we decided directly on rights of property, because that became the aim of dispute. Here we must decide on the right to public functions, because that is here the purpose of the dispute. The main question in all such cases is regularity of organization, and the right to functions and property is a mere consequence of this. 3. May one of the conflicting bodies, or the members of it, maintain this action against the other? We think they may. This could not be doubted in relation to private corporations and partnerships. But it is argued that, in relation to public corporations, the attorney-general alone can file such a bill. We do not think so. It is right for those to whom public functions are intrusted, to see that they are not usurped by others. Either of these bodies has the right to demand of the courts that it and the interests of the public alleged to be committed to it, shall be protected against the usurpation of the other. We decided a similar principle in Mott v. The Railroad, 6 Casey 9, and we need say no more about it now. This case is therefore regularly before us, and we proceed to the consideration of it, premising that there is no material fact in dispute, and that we have no authority to decide directly upon the validity of the election of any one of the claiming members. 4. In all cases of this kind, at least in all bodies that are under law, the law is, that where there has been an authorized election for the office in controversy, the certificate of election, which is sanctioned by law or usage, is the primd facie written title to the office, and can be set aside only by a contest in the forms prescribed by law. This is not now disputed. No doubt this gives great power to dishonest election officers, but we know no remedy for this but by the choice of honest men. When party fealty is a higher qualification than honesty or competence, we must expect fraud and force to rule, ¿tnd a man must be an Ajax or a Ulysses to be qualified for office. 5. On the division of a body that ought to be a unit, the test of which represents the legitimate, social succession is, which of them has maintained the regular forms of organization according to the laws and usages of the body, or, in the absence of these, according to the laws, customs, and usages of similar bodies in like cases, or in analogy to them. This is the uniform rule in such cases. It is always applied in the case of church divisions, and was so applied by us three times last year in the church cases already alluded to. The courts can never apply it to divisions in the supreme legislature, because that body is subject to no judicial authority, and cannot be. They, too, ought to adhere to this rule, for order and regularity are always worthy of respect, and especially so in cases where there is no authority that can enforce their claims. But we need not dwell on this point, for it is admitted that this rule is the test of legitimate organization. 6. Judged by this rule, was the Kerr body legitimately organized? We think it was. The undisputed facts are that there were twenty-three members, including the president last elected, whose terms had yet a year to run; that the clerk and assistant clerk were still in office, having been elected under a yet existing ordinance of 5th May 1855, § 6, that declares that they shall continue in office until the organization of a new Common Council, and until their successors shall be duly elected ; that on the day, and at the hour appointed by law for the organization of the new council for this year, the president and clerks elected last year were in their usual places, and then and there proceeded first to call the roll of all the members whose terms of office had not yet expired, and then to call on the new members to present their certificates of election that their names might be enrolled. It seems strange to us that any one should doubt the strict regularity of this proceeding. It has the sanction of the common usage of every public body into which only a portion of new members is annually infused. It is the periodical form of reorganizing the Select Council and the Senate of the state, and also the form of organizing the Senate of the United States on the meeting of a new Congress, when the vice-president does not appear, and the last president pro tem. does; and we understand this custom to be uniform throughout the United States, though this is not very important. And when there is a president whose term as a member has not expired, then the functions of the clerks continue, and they, in all cases, act as the organs of reorganizing the body, and continue to hold office until their successors are chosen and qualified. Our state and federal houses of representatives are illustration enough of this. So universal is this mode of organizing all sorts of legislative and municipal bodies, that all departures from it can be justified only as founded on special and peculiar usages or on positive legislation. Whenever this form is adhered to, a schism of the body becomes impossible, though the process of complete organization may be very tardy. This council has existed only one year in its present form, and therefore is without any binding usage of its own on this matter. In all cases where part of the public body remains, and is to be complete'd by the reception of new members, it remains as an organized nucleus, and in its organized form it receives the new members, and then proceeds to the election of newr officers, if any are then to be elected. The old nucleus is not dissolved by the incoming elements, but these are added to it, and then the whole body proceeds to the exercise of all its functions. 7. It is objected that a rule that attributes so much power to the officers of the previous year, gives them an advantage which they may use arbitrarily and fraudulently against the new members, so as to secure to themselves an illegitimate majority. No doubt this may be so; but no law can guard against such frauds so as to entirely prevent them, just, as it cannot entirely prevent stealing and perjury and bribery. The people are liable to such frauds at every step in the processes of an election or organization. But so much the more need for order and law in this part of the process. The law can dictate that, though it cannot furnish honesty and sound judgment to the actors in it. That the law and order which we have announced has existed so long and so generally, is proof at least that it is better than no law at all. 8. Was the Trego body regularly organized ? Because both cannot be regular, and the other is; this of course cannot be so. But the fact appears clearly and positively that it was not regularly organized. As the regular officer was proceeding to organize, some one moved, with a loud voice, that Isaac Sulger should act as cleric, and the same voice put the vote, and it was carried by those who liked the motion, and Isaac Sulger proceeded, as temporary clerk, to organize the party to which he belonged — all the other members treating this proceeding as disorderly. And so it was : and in such matters the race is not to the swift nor the battle to the strong or loud-voiced, but to the orderly. The proceeding was opposed to their own written law with regard to the clerks, and to common, usage otherwise, as we have already explained. This is so much like the disorders that occurred in the House of Representatives in 1838, and that produced a dangerous schism there that lasted several weeks, that it hardly needs an opinion from us to condemn it. The disorderly body in that case was dissolved by the force of public opinion, and the members returned and took their places in the regular body, which, by their own fault, they had no hand in organizing. We allude to the merits of that case only in so far as they relate to the order of the proceeding, which is the point here. 9. It is objected that the plaintiffs have no equity to support this motion, because, as defendants believe, they intended to use their power fraudulently, so as to admit persons not elected, and to exclude some that were; and the principal evidence of this purpose is, that the clerk had procured printed slipg containing a list of all the members, including the disputed members of the Kerr side, and excluding one on the other side, who had been, it is said, wrongfully removed. We cannot say that all this is a bar to the motion; for the right to it does not depend upon the merits of tliq nominal parties to this suit, but on the right of the public to have their regular organization protected, so that public business may proceed with security and certainty. Moreover, we cannot condemn the course of the clerk. We suppose it is not unusual for the clerk to prepare such lists for such an occasion; and we cannot say that there was any fraud in them, without deciding upon the election of some of the members, which is beyond our authority in this proceeding. Possibly the result of this view of the law will be that the Kerr body will make an unfair use of their power in the reception of the other members, as it has been suggested, for each party charges the other with having admitted members that were not duly elected, and the learned counsel here have not denied this. But we know of no cure for this but by the improvement of our human nature; this court cannot prevent it without an unauthorized interference with, and direction of, the organization of the body. We must trust them where the law trusts them. Vie declare which body has proceeded in regular form, and having done so, we may not say how it shall act afterwards. It has a law directing that. We need not even say how far the act of organization has proceeded: it was regularly commenced and carried on, and no irregular body can be allowed to interfere with it at any stage of its work. And we can see no propriety in our interfering to save those who have initiated an abortive revolution from the temporary loss of power, which may possibly result from their defeat. It may be that they have passed the time for contesting disputed seats, but we cannot help that; we did not make their election law, and, we cannot alter it, and equity can hear no one who alleges his own wrong as a ground of relief. And it is not possible for us to impose terms wisely without trying ourselves all the disputed seats, which, as we have said, we cannot do. If there was before us a yet undetermined question, the determination of which might change the result and restore the other party, we would impose terms for speeding the trial of that question, as we did last fall in the sheriff’s case. But there is no such question in reserve here. The efficiency of our action is in the declaration that the Trego organization is without right, and the granting of the injunction is little more than the form of putting this declaration on the record. . The preliminary injunction is granted as prayed for.

OPINION OF THE COURT NEWMAN, Justice. This appeal concerns a default judgment that Appellant, Cintas Corporation (Cintas), obtained against Appellee, Lee’s Cleaning Services, Inc. (Lee’s Cleaning). Lee’s Cleaning filed a petition to strike the default judgment, alleging improper service of process. The Court of Common Pleas of Philadelphia County (trial court) denied the petition to strike and the Superior Court reversed. For the reasons that follow, we reverse the Superior Court. FACTS AND PROCEDURAL HISTORY In December of 1992, the parties entered into an agreement by which Cintas rented uniforms to Lee’s Cleaning. When Lee’s Cleaning allegedly failed to pay for the uniform rentals, Cintas filed a complaint for breach of contract on February 22, 1994. On February 28, 1994, Cintas served the complaint on Lee’s Cleaning. Howard Zavodnick, Esquire, counsel for Cintas, filed a return of service on March 16, 1994 describing the method of service and stating that his employee, Albert Zavodnick, had served the complaint on Lee’s Cleaning. The return of service provides, in relevant part, as follows: HOWARD B. ZAVODNICK, hereby certifies that Albert Zavodnick did serve a true and correct copy of the Civil Action complaint upon the defendant, Lee’s Cleaning Services Inc, at 3858 Pulaski Street, Philadelphia, PA 19140 on February 28, 1994 at 8:30 A.M. by hand delivering same to Virginia Watson, the person in charge. After Lee’s Cleaning failed to respond to the complaint, Cintas sent a ten-day notice of its intent to take a default judgment to Lee’s Cleaning on August 31, 1994. Lee’s Cleaning did not respond to the default notice. Cintas then filed a praecipe to enter a default judgment for $7,685.85 on September 23, 1994. The Prothonotary entered judgment against Lee’s Cleaning on September 26, 1994. Approximately six months later, on March 23, 1995, Lee’s Cleaning filed a petition to strike the default judgment. First, Lee’s Cleaning argued that the return of service was defective because it was not completed by Albert Zavodnick, the person who actually made service, and thus, it violated Pa.R.C.P. 405, which requires the person making service to complete the return of service. Second, Lee’s Cleaning argued that service of process was improper because the complaint was delivered to Virginia Watson, who was a receptionist and not a person “in charge” as required by Pa.R.C.P. 424. In support of this argument, Lee’s Cleaning filed the affidavit of Nina Kinnard, its vice president, secretary and treasurer. The affidavit states that Watson was not the person in charge of business at Lee’s Cleaning. The trial court denied Lee’s Cleaning’s petition to strike the default judgment. Without addressing the Rule 405 claim, the court held that service was proper under Rule 424 because Kinnard’s affidavit did not deny that Watson held herself out as the person in charge on the day Albert Zavodnick served the complaint. On appeal, the Superior Court held that the return of service was defective pursuant to Rule 405 because Albert Zavodnick did not complete it. Cintas Corp. v. Lee’s Cleaning Services, Inc., 449 Pa.Super. 94, 672 A.2d 1371 (1996). Based on its disposition of the first issue, the Superi- or Court did not reach the Rule 424 claim that service was improper because Watson was not in charge of the office. Cintas then filed a petition for allowance of appeal, which we granted. DISCUSSION In Resolution Trust Corp. v. Copley Qu-Wayne Associates, 546 Pa. 98, 683 A.2d 269 (1996), we described a petition to strike a judgment as follows: A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record.... An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered. Id. at 106, 683 A.2d at 273 (citations omitted). When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a judgment, a court may only look at what was in the record when the judgment was entered. Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969). Here, Lee’s Cleaning alleges that the record supporting the default judgment against it was fatally defective because Cintas violated Pa.R.C.P. 405 and Pa.R.C.P. 424 when it served its complaint. Pa.R.C.P. 405 Rule 405 governs the return of service and provides, in relevant part, as follows: (a) When service of original process has been made the sheriff or other person making service shall make a return of service forthwith. If service has not been made and the writ has not been reissued or the complaint reinstated, a return of no service shall be made upon the expiration of the period allowed for service. (b) A return of service shall set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made. (d) A return of service by a person other than the sheriff shall be by affidavit.... (e) The return of service or of no service shall be filed with the prothonotary. Pa.R.C.P. 405 (emphasis added). Cintas admits that its return of service was defective under Rule 405(a) because Howard Zavodnick completed the return of service instead of Albert Zavodnick, the person who actually made service. It argues, however, that the return of service was sufficient in all other respects to allow the trial court to determine that service was properly made, and therefore, the court correctly denied the petition to strike. We agree. Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Sharp v. Valley Forge Medical Ctr. and Heart Hosp., Inc., 422 Pa. 124, 221 A.2d 185 (1966). Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. U.K. LaSalle, Inc. v. Lawless, 421 Pa.Super. 496, 618 A.2d 447 (1992). Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Frycklund v. Way, 410 Pa.Super. 347, 599 A.2d 1332 (1991). However, the absence of or a defect in a return of service does not necessarily divest a court of jurisdiction of a defendant who was properly served. Commonwealth ex rel. McKinney v. McKinney, 476 Pa. 1, 381 A.2d 453 (1977). “[T]he fact of service is the important thing in determining jurisdiction and ... ‘proof of service may be defective or even lacking, but if the fact of service is established jurisdiction cannot be questioned.’ ” Id. at 6, 381 A.2d at 455 (quoting Goodman v. Ancient Order of United Workmen, 211 Minn. 181, 183-84, 300 N.W. 624, 625 (1941)). Here, the Superior Court held that due to the defect in the return of service, “the face of the record does not reveal whether service was properly made, and the court’s jurisdiction over the action remains in question.” Cintas, 449 Pa.Super. at 98, 672 A.2d at 1373. To the contrary, the face of the record (i.e., the return of service) alleges ample facts to show that service was proper. Rule 405(b) requires that the return of service set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made. Pa.R.C.P. 405(b). The return of service stated that Albert Zavodnick delivered the complaint to Virginia Watson, the person in charge, on February 28,1994 at 8:30 a.m. in the offices of Lee’s Cleaning at 3858 Pulaski Street in Philadelphia. Thus, the return of service contained sufficient information for a court to determine that service was proper, and any noncompliance with Rule 405(a) did not render service fatally defective. Therefore, the Superior Court erred in reversing the trial court’s Order denying Lee’s Cleaning’s petition to strike. Pa.R.C.P. Lee’s Cleaning argues that even if we excuse the noncompliance with Rule 405(a), service was still improper because Watson was not the person in charge for the purposes of Pa.R.C.P. 424. Rule 424 sets forth the methods of effectuating service on corporations and similar entities and provides as follows: Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action: (1) an executive officer, partner or trustee of the corporation or similar entity, or (2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or (3) an agent authorized by the corporation or similar entity in writing to receive service of process for it. Pa.R.C.P. 424 (emphasis added). According to the affidavit of Nina Kinnard, which was appended to the petition to strike, Watson was a receptionist for Lee’s Cleaning and was never designated as the person in charge. Thus, Lee’s Cleaning argues that Cintas failed to comply with Rule 424(2) and proper service has not been made. However, Lee’s Cleaning brought this challenge in a petition to strike the default judgment instead of a petition to open the default judgment. There is a significant distinction between these two types of petitions, a distinction that prevents the review of Lee’s Cleaning’s claim. A petition to strike a default judgment and a petition to open a default judgment are generally not interchangeable. U.K. LaSalle. A petition to strike does not involve the discretion of the court. Dubrey v. Izaguirre, 454 Pa.Super. 504, 685 A.2d 1391 (1996). Instead, it operates as a demurrer to the record. Copley. A demurrer admits all well-pleaded facts for the purpose of testing conclusions of law drawn from those facts. See Lumax Industries, Inc. v. Aultman, 543 Pa. 38, 669 A.2d 893 (1995); Gabel v. Cambruzzi, 532 Pa. 584, 616 A.2d 1364 (1992); Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972). Because a petition to strike operates as a demurrer, a court may only look at the facts of record at the time the judgment was entered to decide if the record supports the judgment. Linett. A petition to strike can only be granted if a fatal defect appears on the face of the record. Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 511 A.2d 761 (1986). For example, in Sharp, the defendant filed a petition to strike a default judgment based on defective service. The return of service there stated that the complaint was delivered to the person in charge of defendant’s “place of employment” instead of defendant’s “office or usual place of business”. Sharp, 422 Pa. at 126, 221 A.2d at 186 (interpreting former Rule 1009(b)(2)(iii), now Rule 402(a)(2)(iii)). Thus, we held that the judgment should be stricken because the defect appeared on the face of the record. Sharp; see also Clymire v. McKivitz, 350 Pa.Super. 472, 504 A.2d 937 (1986) (record was fatally defective on its face because it did not show that the complaint was served on the defendant and because the complaint did not contain a notice to plead). In contrast, a petition to open a judgment is an appeal to the equitable powers of the court. First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 506 Pa. 439, 485 A.2d 1086 (1984). It is committed to the sound discretion of the hearing court and will not be disturbed absent a manifest abuse of that discretion. Id. Ordinarily, if a petition to open a judgment is to be successful, it must meet the following test: (1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A2d 549 (1979). However, where the party seeking to open a judgment asserts that service was improper, a court must address this issue first before considering any other factors. United States Dep’t of Housing and Urban Dev. v. Dickerson, 358 Pa.Super. 23, 516 A.2d 749 (1986); Mischenko v. Gowton, 307 Pa.Super. 426, 453 A.2d 658 (1982); Liquid Carbonic. If valid service has not been made, then the judgment should be opened because the court has no jurisdiction over the defendant and is without power to enter a judgment against him or her. Id. In making this determination, a court can consider facts not before it at the time the judgment was entered. Linett. Thus, if a party seeks to challenge the truth of factual averments in the record at the time judgment was entered, then the party should pursue a petition to open the judgment, not a petition to strike the judgment. Copley; see also Liquid Carbonic (petition to open granted where record was facially valid at time judgment was entered but subsequent affidavits and depositions in support of the petition to open demonstrated that service was improper). Here, Lee’s Cleaning did not attempt to prove that there was a fatal defect on the face of the record at the time the judgment was entered, nor could it, because the return of service clearly stated that Virginia Watson was the person in charge of Lee’s Cleaning’s office at 3858 Pulaski Street. Instead, Lee’s Cleaning challenged the truth of the factual averments in the return of service via the affidavit of Nina Kinnard filed with the petition to strike. The appropriate mechanism to bring this challenge is a petition to open the judgment, not a petition to strike the judgment. Copley; Linett. Accordingly, Lee’s Cleaning’s claim pursuant to Rule 424(2) is not properly before us. Linett. Moreover, even if we were to view the petition to strike as a petition to open and consider the allegations in the Kinnard affidavit, Lee’s Cleaning still would not be entitled to relief. While there are few appellate cases interpreting the phrase “person for the time being in charge” in Rule 424(2), Pennsylvania courts addressing this issue have recognized that the purpose of the rule is to satisfy the due process requirement that a defendant be given adequate notice that litigation has commenced. Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476 (3d Cir.1993); Trzcinski v. Prudential Property and Casualty Ins. Co., 409 Pa.Super. 114, 597 A.2d 687 (1991). Thus, in Grand Entertainment, the Court of Appeals for the Third Circuit held that a receptionist, who was located in the lobby of a building where the defendants were tenants and who was not employed by the defendants, did not qualify as a “person for the time being in charge” because she did not have a sufficient connection to the defendants. Similarly, in Trzcinski, the Superior Court held that the receptionist of a law firm, which had previously represented the defendant in other matters, was not the “person for the time being in charge” of the defendant’s regular place of business. Additionally, in Fisher v. Kemble Park, Inc., 186 Pa.Super. 407, 142 A.2d 353 (1958), where the court interpreted the same language in Pa.R.C.P. 2180(a)(2), a predecessor to Pa.R.C.P. 424(2), the court held that service on a janitor in a building owned by the defendant was not sufficient. However, where service was made on a receptionist in the defendant’s offices and the receptionist represented to the process server that she was the person in charge, the Superior Court held that service was proper. Hopkinson v. Hopkinson, 323 Pa.Super. 404, 470 A.2d 981 (1984) (interpreting Pa.R.C.P 2180(a)(2)), overruled on other grounds, Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988). The common thread among these cases is that there must be a sufficient connection between the person served and the defendant to demonstrate that service was reasonably calculated to give the defendant notice of the action against it. The present case is more akin to Hopkinson than Grand Entertainment, Trzcinski or Fisher. Although the return of service here did not allege that Watson expressly represented that she was the person in charge, Cintas supplied this fact in a subsequent affidavit by Albert Zavodnick filed with its response to Lee’s Cleaning’s petition to strike. In the affidavit, Albert Zavodnick states that Watson “identified herself as the person in charge of the business at the aforesaid address, known as Lee’s Cleaning Services, Inc.” The trial court would have been able to consider this affidavit if Lee’s Cleaning had filed a petition to open. Copley; Linett. Therefore, even if Lee’s Cleaning had properly brought its challenge pursuant to Rule 424(2) in a petition to open, it would not be entitled to relief because service was proper. Hopkinson. Accordingly, we reverse the Order of the Superior Court and reinstate the trial court’s Order denying the petition to strike. NIGRO, J., did not participate in the consideration or decision of this case. . The Honorable Phyllis W. Beck filed a dissenting statement, reasoning that the technical noncompliance with Rule 405 here should not result in a finding of defective service. . We caution, however, that the result here does not relieve a party of his or her obligations under the Rules of Civil Procedure, and those who fail to comply with the Rules do so at their own peril. . We note that a leading commentator on Pennsylvania practice has stated the following concerning the interpretation of a “person in charge for the time being” pursuant to Pa.RX.P. 424(2): It should not be possible for a defendant to avoid a valid service of original process by the device of placing an office or usual place of business under the control of a subsidiary or minor employee and thereafter taking the position that such person did not bear a proper relationship to the company so that service upon him or her would be sufficient to assure the requisite notice to the company. Goodrich Amram 2d § 424(2):2 (1991).

OPINION OF THE COURT FLAHERTY, Justice. Patricia Melendez was convicted by a jury of possession of cocaine with intent to deliver and possession of drug paraphernalia in violation of the Controlled Substance, Drug, Device and Cosmetic Act, criminal conspiracy, and violation of the Uniform Firearms Act. She was sentenced to eleven and one half years to twenty-three years in prison. On appeal, Superi- or Court affirmed the convictions, with one judge dissenting. We granted allocatur in order to address Melendez’s claims that police conducted improper searches and seizures of inculpatory evidence which should have been suppressed at trial. On November 9, 1990 Philadelphia police began a surveillance of 5155 Pennway Street. This was the culmination of a three-week investigation into possible drug activity at this address. Police at the scene were in communication with an officer at another location who was typing up an application for a search warrant of the premises. About an hour after the surveillance began, Melendez left the house on Pennway Street, got in an automobile, and drove away. Police then stopped her, removed her from the car, and searched her purse, where they found a .25 caliber handgun, a large amount of cash, and what police describe as a drug tally sales sheet. Police had observed no criminal activity on the part of Melendez, but stopped and searched her because she was a suspect in a felony investigation. Police then transported Melendez back to her house, where they used her keys to gain entrance. Upon entering the house, police observed Melendez’s co-defendant holding a bag of cocaine. Police then secured the house and its occupants and waited for communication as to whether or not the search warrant had been approved. For approximately an hour, police waited at the scene with both occupants of the dwelling, but did not conduct a search. Finally, the warrant arrived and they searched the house, finding drugs, cash and other evidence which was used to obtain the convictions. Although Melendez raises a number of issues, because of our disposition of the case, we limit our discussion to the questions of whether under the United States and Pennsylvania constitutions (1) Melendez was improperly stopped and searched, requiring suppression of any evidence seized as a result of the search and (2) whether the warrantless entry of Melendez’s home was illegal, requiring the suppression of evidence seized from the home. We answer both questions in the affirmative. The Pennsylvania Constitution provides: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. Art. I, Sec. 8. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const.Amend. 4. Under both federal and state provisions, people are to be secure in their persons against “unreasonable searches and seizures.” The issue in the first instance is whether Melendez was unreasonably stopped and searched when she attempted to drive away from her residence. In Commonwealth v. Rodriquez, 532 Pa. 62, 71, 614 A.2d 1378, 1382 (1992), this court stated: In accordance with the protections afforded our citizens under Article I, Section 8, we have recognized only two instances where police may “seize” an individual^] both require an appropriate showing of antecedent justification: first, an arrest based upon probable cause, Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987); second, a ‘stop and frisk’ based upon reasonable suspicion, Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). In sum, there are two circumstances in which warrantless seizures of a person are constitutionally permissible. The first is where police have probable cause to believe, that a crime is being or is about to be committed. The second is that a limited seizure may be effected where there is a reasonable police belief that criminal activity is afoot. Hicks, 434 Pa. at 160, 253 A.2d at 279, interpreting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In this case, Melendez was not engaged in any activity at the time she was stopped which would cause a person of reasonable caution to believe that she was then engaged in criminal conduct. The brief for the Commonwealth concedes that detectives stopped Melendez because “if the suspect was at large when the impending search warrant was executed she might never be apprehended.” The fact that Melendez might avoid arrest, however, does not constitute probable cause to arrest her, for at that point, there was no probable cause to believe that Melendez was committing or about to commit a crime. The remaining possibility for a legal seizure of the person of Melendez is that the stop constituted a stop and frisk under the Terry-Hicks line of cases. However, unless police have “specific and articulable facts” which lead them to suspect criminal activity, Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906, they may not stop and search any person without a warrant. Since the Commonwealth offers no “specific and articulable facts” here, there was no justification for even the limited intrusion of a Terry stop. In an apparent attempt to avoid this conclusion, the trial court stated that “police stopped Ms. Melendez for investigation____” However, the “investigation” rationale does not supply the articulable-basis-for-suspicion requirement of Hicks and Terry. No person may be stopped for “investigation” in the absence of an articulable reason to suspect criminal activity, and the record contains no indication that police had any basis to believe that Melendez was engaged in any criminal activity at the time of the stop. Instead, police had only the suspicion that Melendez was involved in illegal drug sales at a time and location wholly separate from the place she was stopped. Terry stops, however, are designed to address immediate suspicions of current illegal conduct. Concerns that Melendez may have been engaged in illegal activity in her home were properly addressed by the application for a search warrant and provide no basis for a Terry stop. Superior Court justified the warrantless stop and search in this case by reference to “exigent circumstances.” Making reference to Commonwealth v. Peterson, 408 Pa.Super. 22, 596 A.2d 172 (1991), Superior Court stated the applicable law as follows: It is well-settled that exigent circumstances excusing the warrant requirement arise where the need for prompt police action is imperative____ Whether exigent circumstances exist depends on an examination of all of the surrounding circumstances in a particular case.... [T]he inherent necessities of the situation at the time must be scrutinized. Slip Op. at 10. Superior Court then proceeded to determine that the present case involved exigent circumstances: failure to halt the vehicle of appellant and detain her would have set the stage for her to return to the premises during the execution of the search warrant, observe the police activity at the premises, and been thereby impelled to flight____ Similar exigent circumstances justified the warrantless entry of the residence of appellant since the failure of appellant to arrive at her destination at a particular time or within a particular period could well have set in motion, by pre-arrangement among the conspirators or by happenstance, circumstances which her co-defendant would have viewed as so untoward as to necessitate destruction or removal of contraband from the scene. Slip Op. at 11. Although Superior Court finds the exigencies of this case “quite compelling,” we disagree. Our disagreement with Superior Court’s determination that exigent circumstances justified the search is based on our view that there was no “imperative” need for police action in this case. There is no evidence of record that any of the “untoward” eventualities Superior Court mentions actually existed, and if the police created a danger that their surveillance might be discovered because they stopped Melendez’s car, they can hardly be allowed to rely on that to justify a warrantless intrusion. Had the police simply waited for the search warrant, they could have searched the dwélling and avoided the problems of the present case. Had contraband been found during the search, police then could have arrested Melendez on the basis of this evidence. There were no exigent circumstances. In sum, the stop, and therefore the search, were illegal, for the stop was grounded neither on probable cause nor the less stringent requirements of Terry, and the warrant requirement was not obviated by the existence of exigent circumstances. It is our conclusion, therefore, that the items seized and introduced into evidence must be suppressed under Art. I, Sec. 8 of the Pennsylvania Constitution. Next we address the claim that the search of the premises was illegal. Superior Court justified the search because Melendez consented to return with the police to her home and to their using her keys to open the door and enter. Even if Melendez had not given her consent, according to Superior Court, “exigent circumstances” were such that the police would have been authorized to enter anyway. Moreover, even if there were no exigent circumstances, the evidence seized at the residence would have been admissible under the “inevitable discovery rule.” We address these assertions seriatim. After police stopped Melendez, they told her they were getting a search warrant for her house and asked her to go there with them. There is no evidence of record that she consented to accompany police or to have them enter her house. In Commonwealth v. Davenport, this court stated: In Bumper v. North Carolina, 391 U.S. 543, 548-9 [88 S.Ct. 1788, 1791-2] 20 L.Ed.2d 797, 802 (1968), the Supreme Court of the United States held that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” 453 Pa. 235, 241-42, 308 A.2d 85, 88-89 (1973). In this case, Melendez was not informed of her right to refuse to accompany police or her right to refuse their entry into her house. Clearly, she waived nothing, and she certainly did not freely and voluntarily consent to the police entry into her house. Superior Court’s determination of consent is in error. Next, Superior Court asserts the presence of exigent circumstances. There is some dispute as to where police stopped Melendez. The trial court found that it was several blocks from her home and the Commonwealth asserts that it was in her driveway. Our view is that it does not matter where police stopped her. If the concern was that police activity might have been witnessed by a person remaining in the house who might begin to destroy evidence, such a possibility is of no legal consequence, for police may not create their own exigencies, which they then use as justification for exclusion from normal warrant requirements. Finally, Superior Court held that even if circumstances were not exigent, the evidence seized at the house would have been admissible under the “inevitable discovery” rule. In Commonwealth v. Mason, 535 Pa. 560, 565, 637 A.2d 251, 253 (1993), we discussed both the inevitable discovery rule and its relation to the Pennsylvania Constitution. The inevitable discovery rule, sometimes referred to as the “independent source rule,” is that if the prosecution can demonstrate that the evidence in question was procured from an independent origin, such evidence is admissible. In Mason police officers were conducting a surveillance of an apartment as a suspected site of illegal drug sales. They arranged for an undercover officer to purchase cocaine from an intermediary, who purchased his cocaine from persons in the apartment. After the intermediary delivered the cocaine to a police informant, he was arrested several blocks from the apartment. The intermediary told the police that occupants of the apartment sold him cocaine and were conducting other drug transactions in the apartment. Police then applied for a search warrant based on this information and their surveillance, but before an officer returned with the warrant, officers who remained near the apartment battered down the door. They were concerned that word of the intermediary’s arrest might be communicated to occupants of the apartment, who would then destroy evidence of criminal activity. We rejected the police claim that exigent circumstances justified the warrantless entry. The asserted exigency was that evidence of criminal activity might be destroyed if police were not permitted to enter without a warrant and secure the premises until they learned whether a warrant had been issued. Our view, however, was that mere speculation that evidence may be destroyed because suspects may learn of police activity is inadequate to justify a warrantless entry, and in any event, police may not bootstrap themselves into exigencies by their own conduct. In Mason we held that “where police seize evidence in the absence of a warrant or exigent circumstances by forcibly entering a dwelling place, their act constitutes a violation of Article I, Section 8 of the Pennsylvania Constitution____” 535 Pa. at 571, 637 A.2d at 257. We acknowledged that the independent source rule had been applied in Pennsylvania, but we emphasized that its application has been limited. Further, we observed that our past cases have made it clear that we place a greater importance on privacy under the Pennsylvania Constitution than have recent federal cases under the United States Constitution, and we noted that the facts in Mason were importantly different from the facts in previous independent source cases in that they involved the invasion of a dwelling place. Our emphasis on the importance of privacy in Pennsylvania jurisprudence and the fact that the illegal police invasion was of a home left open the question of whether Mason was to be understood as requiring an absolute exclusion of evidence which was illegally seized in warrantless police intrusions of a home, or whether the illegally seized evidence might be salvaged through exceptions to the warrant requirement such as the independent source rule. Today we resolve that question and clarify Mason by holding that such illegally seized evidence may be admitted into evidence through exceptions to the warrant requirement such as the independent source rule. However, although the independent source rule would allow for the admission of illegally seized evidence, it has no application in this case. Mr. Justice Cappy, concurring in Mason, voiced a concern that unless the independent source doctrine was more firmly limited than we had done in Mason, police officers would be likely to believe that if they first requested a warrant, they could then conduct an illegal entry and escape suppression of the evidence which they would later seize pursuant to the warrant. It would appear that his concern was well founded, and we hereby adopt the limitation of the independent source rule which Mr. Justice Cappy proposed in Mason: [Application of the “independent source doctrine” is proper only in the very limited circumstances where the “independent source” is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered. 535 Pa. at 573, 637 A.2d at 257-58 (emphasis in original). Applying this rule to the present case, there is no source of the evidence in question that is “truly independent” of either the tainted evidence or the police who engaged in the misconduct. The evidence must, therefore, be suppressed. The Pennsylvania Constitution does not allow police intrusions exemplified by this case and Mason. Government agents may not enter private dwellings through the use of battering rams as in Mason, or by effecting illegal stops and seizures as in this case, and secure the premises by detaining those who occupy the premises while police wait to learn whether their application for a warrant has been approved. It is difficult to imagine practices more inimical to the fundamental idea that no person shall be subject to unreasonable searches and seizures. Judgment of Superior Court is reversed. CAPPY, J., files a concurring opinion which is joined by ZAPPALA, J. CASTILLE, J., files a dissenting opinion. . 35Pa.C.S. § 780-113. . 18 Pa.C.S. § 903. . 18 Pa.C.S. §§ 6106 and 6108. . Probable cause has been described as occurring where the facts and circumstances within the officer’s knowledge and of which he has trustworthy information are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040, 1050 (1967). . If, on the other hand, police have articulable and reasonable suspicion of criminal activity, they may conduct a brief investigatory stop for the purpose of learning what they can, and during the course of this stop, should they be reasonably concerned for their safety, they may conduct a pat-down of the suspect’s outer garments for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is always uncertain what may be learned from a Terry stop, however, for there is no requirement that the person stopped answer any questions which are put to him, and in that event, the police are without authority to do more than make their presence known and, if appropriate, conduct a surveillance of the suspected activity. . The Terry situation concerns "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat....” Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. . In Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992) and in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), this court rejected attempts by the Commonwealth to erode the boundaries of the Terry exception to probable cause requirements so as to permit “investigation” stops or police seizures which are intended to "freeze” the situation. . The Commonwealth attempts to meet its burden of proving consent to enter the house by arguing that "there is no evidence that [Melendez] would not have been free to go if she had opted to decline [the police] request to return to the house. The record demonstrates only that defendant was asked to do something under non-threatening circumstances, and she agreed to do it." Brief at 15. (emphasis in original.) However, the Commonwealth had earlier conceded that Melendez was stopped because otherwise she might never be apprehended. Brief at 4. If she was stopped in order to prevent escape, she was not free to go, and if she was not free to go, absent an express consent, her conduct can only be regarded as acquiescence. There is nothing of record to indicate express consent. It is our view, therefore, that the Commonwealth has not met its burden of demonstrating that Melendez consented rather than merely acquiesced.

Tilghs^an C. J. In the assignment of errors, several exceptions .are taken to the charge delivered by the President of the Court of Common Pleas, of which it is necessary to take, notice; but the main ground of defence is, that the plaintiffs could not support ■ an action, until the validity of the will was finally decided. The defendant pleaded that he was married to the plaintiff, on which issue was joined, and it was objected that the júdge ought to have directed the jury that the evidence proved the marriage. The j udge laid down the law correctly. He told the jury that marriage was a civil contract, which might be completed by any words in the present time without regard to form. He told them also, that in his opinion the words proved did not constitute a marriage, and in this I agree with him. The plaintiff and defendant came to their lawyer Mr. Watts on business, without any intention of marrying. They had long-lived in an adulterous intercourse, although they considered themselves as lawfully married. In fact they had entered into a marriage contract which was void, because the defendant had a 'former wife living, from whom he had. been separated by consent but not legally. Some time before the parties came to Mr. Watts, a legal divorce had been pronounced, and Mr. Watts advised them tp celebrate a new marriage. The defendant said, “ I take you (the plaintiff) for my Wife,” and the plaintiff being told that if she would say the same thing'the marriage would be complete, answered, “ to be sure he is my husband good “ enough.” ‘ Now these words, of the woman do not constitute a present contract, but allude to the past contract, which she always asserted to be a lawful marriage. Mr. Watts advised them to repeat the marriage in a solemn manner before a clergyman, which was never done. So that under all circumstances, it appears to me, that what was done was too slight and too equivocal to establish a marriage. 2. Part of the personal estate, which had come to the hands of the defendant was cash, and part bonds, notes fkc. The defendant contended that this action for money had and received for the use of the plaintiff, could not be supported without proof of the money having come to his hands. The law is so, and in looking at the judge’s charge, I find that he so declared it, but told the jury, that although there was no express evidence of the .receipt of the money, yet they would be justified in concluding that it was received, if they were satisfied that such was the fact by circumstantial evidence. The charge therefore was right. If the jury "drew a wrong conclusion, it is not for this Court to rectify it. 3. The remaining exceptions may be reduced to one, viz. whether the law raised an assumption to pay the money in the hands of the defendant under the circumstances of this ease. In considering it, we must take the case as it stood at the commencement of. the action; for if there was no as"sumption then, nothing which has happened since can alter it. The plaintiff’s claim is founded solely on the will of her husband, and the only evidence of that will which the law "admits, so far as concerns personal property, is a probate in the register’s court, to which an appeal had been made from the act of the register individually in admitting the will To probate in the first instance. The decree of the register’s court was suspended by the demand of an issue to try the validity of the will, and it is enacted by the act of 13th April 1791, that the verdict returned to the register’s court on that issue shall be conclusive. When this action was commenced the issue was not finally decided, because although a verdict had been taken, and judgment entered in the Circuit Court, there was an appeal to the Supreme Court, which held the validity of the will in suspense. The verdict had not been returned to the register’s court, nor could it be returned until the appeal was decided; for upon that decision it depended, whether the verdict should stand or a new trial be had. In this situation the plaintiff brings her action, founded on implication of law, for no.actual promise is pretended. I enter not into the-'question, whether any kind of action can be. supported but that pointed out by the act “ for the more easy recovery of legacies;” but will take for granted for the present that where the law enjoins payment of money, it raises a promise to pay. What was the duty enjoined by law on the defendant? He was bound to pay the debts of the deceased as far as the assets extended, because the propriety of paying them did not depend on the will. Debts must be paid, will or no will. But it was not the duty of the defendant to pay any thing, which depended on the will, until it was decided whether the will existed. On the contrary such payments would be at his own peril. It is very clear that if a legacy had been paid, and the issue had been finally decided against the will, the defendant would have been responsible. The plaintiff’s argument then leads to this; that although the law does not require payment, and prudence forbids it, yet the law raises an assumption to pay. The conclusion being palpably false, the assumption falls to the ground, and therefore the action cannot be supported. But it has" been strongly urged on the part of the plaintiff, that the plea of non-assumpsit was a confession that there was a will, of which the defendant was executor. In proof ' of this, cases were cited which show,, that in actions of debt or on the case against an executor for a debt due from the testator, the plea of non est factum or non assumpsit is an admission of a will, of which the defendant is executor; but those cases are widely different from the present. There the matter put in issue was, whether the testator made the assumpsit, or whether the bond was the deed of the testator. Consequently the will not being denied, was admitted. But here the action is not for a demand on which the testator was liable, and tbe plea of non assumpsit applies to the defendant and not to the testator.' Under this plea the defendant may give every matter in evidence which shows either that he made no assumption before the suit brought, or that the demand was extinguished before the suit brought. Supposing upon this issue it had been proved expressly, that the plaintiff had a cause of action, but that it did not arise until after the commencement of the suit. Surely he could not have recovered. Now that is the very case appearing on this record. Whenever the will was finally established, .the law raised an assumption; but that was not till after the commencement of the action. I am therefore of opinion that the judgment should be reversed. Yeates J. after stating the facts at large, delivered his opinion. I consider the exception taken to this suit as brought prematurely, to be fatal. Upon this point I wholly concur with the President. The objection was founded on the probate of the will by the register, the operation of whose sentence remained in suspense, while the issue taken upon the validity of the will was pending and undetermined. The defendant in error relied on this probate only, and did not adduce the witnesses to the will, nor account for their non-attendance. Until the will was finally determined on, the executor or administrator with the will annexed was under neither a legal nor moral obligation to pay the legacies devised. If he made such payments, and the validity of the will should be afterwards established in the dernier resort, he would risk his own property. No debt due from the testator was sought fox', but a demand flowing from his bounty. Whether he had been thus bountiful or not, formed a material subject of inquiry. The cause of actioxx arose on the will itself; and on the plea of ixon-assumpsit, every species of defence is open to the defendant. It is fully settled, that on this issue, every thixxg may be given ixx evidence xvhich shows that the plaintiff has no right to x-ecovex-, except perhaps a general release. 2 Barnes 293., 1 Ld. Ray. 217., 2 Stra. 733., 3 Burr. 1353. And even as to this exception the law is doubtful, 2 Burr. 1010., Buller 148, 149. The plaintiff below was bound to prove her case as she laid it, and must show an existing cause of action when she brought her suit. A legislative exposition of the effect of an appeal from the Register’s Court is given in the 18th section of the act of 13th April 1791, 3 Dall. St. Laws 98. “ No appeal from the decree of the said Register’s “ Courts concerning the validity of a will or the right to “ administer, shall stay the proceedings or prejudice the act “ of any executor or administrator pending the same, pro-u vided the executor shall give sufficient security for the “ faithful execution of the will and testament to the regis- “ ter &c.” ' The case cited from Godolphin’s Orphan?s Legacy 64, third edit., fully proves the proposition which I have attempted to establish. There debt was brought by an executor, and the will proved by sentence was shewn in Court. The defendant pleaded that the pretended testator died intestate, and that administration was committed to him, and shewed an appeal from the said sentence of the probate of the will. Coke and Doderidge held that the appeal suspended the probate, and so upon the matter was not any probate at all, and therefox-e the plaintiff coxxld not have action. I cannot conceive that Hantz is concluded by taking out letters of administration de bonis non with the will annexed, from insisting that legal evidence should be given of the will, or that his entry of a judgment in the Circuit Court docket on the 25th May 1805, and issuing an execution fox-costs returnable to December term following, could operate as the abandonment of an appeal instituted by his adversax-ies, without their consent. This was a palpable mistake, and was rectified at once by the counsel. The appeal to this Court remained on our records. It is adxnitted by the couxxsel of the defendaxxt in error, that he brought forward his appeal, axxd ax-gued it in May term 1810. Why was this done, if the appeal had been previously abandoned? Why was it thought necessary that the decision of this Court should be pronounced? If the judgment of the Circuit Coux-t had not been affirmed here, previous to the trial of the present cause, it cannot be pretended that the probate of the will before the register coxxld have been adxnitted in evidence. I can see no reason why, when it has been affix-med, our judgment in 1810 should have a retrospective effect to validate proceedings instituted to August terxn 1807. I hasten to the other matters assigned for error, wherein I fully assent to the charge of the President to the jury. . His remarks as to marriage being a civil contract by our laws, I take to be perfectly correct. It is binding between the parties, when entered into with full consent per verba in presentí. The acknowledgments of the parties being man and wife, evidently refer to the illicit connection between them during the subsisting marriage between Hantz and his former wife, who was then living; and as to what passed in the presence of Mr. Watts, which has been particularly detailed by the Chief Justice, an explicit consent was not given on the part of the woman, nor did he himself consider it as a valid marriage at the time, because he recommended to them more than once to be married by a clergyman, and he thought they went out for that purpose. There is no difficulty in saying that where it may be fairly presumed that money has been received for the use of another, there is no occasion for express proof. If the case will justify it/the jury may presume the payment of money as well as any other fact. And as to the tender of the refunding bond to the plaintiff in error, previous to the commencment of the suit, if he meant to have made that a serious defect, he might have brought it before the Court upon an objection against the suit being sustained, or might have pleaded it in abatement, so that the fact might have been put in issue and fairly tried. When a suit for a legacy has progressed to a trial on its merits, and no complaint made of the want of a tender to the executor or administrator with the will annexed, before the action was brought, I should feel myself strongly disposed to assert, that the party had slipped his time. Here the refunding bond is actually filed in the cause; I cannot but consider the exception as a surprize on, the plaintiff below on the trial. Upon the first ground alone, I am of opinion that the judgment of the Common- Pleas be reversed. BrackenRidge J. I have been unwilling to request this case to be holden under advisement, because as the judgment is to be reversed, it would be for the interest of the plaintiff that it be done immediately, that| she may go on again. At the same time, I am not perfectly satisfied, that the judgment might not be supported. But it would require some investigation of principle before I could venture to give reasons of dissent. If this case should be reported with the opinions of the judges, I may give a note to be added to the report on the subject. I have been wondering only whether the defendant ought not to have pleaded at an early stage the caveat against the will, or the appeal puis darrein continuance, so as to give the plaintiff an opportunity of replying fraud and collusion, or the special matter, or perhaps negligence in the execution of the trust, that she might by damages compel an administration and settlement. What else could be done at common law by an action on the case or account render? But' whether our system supersedes, that will be the question. • I may consider it perhaps, and signify my concurrence with the majority, or my dissent, with the reasons in the case. Judgment reversed. J\'ote which may be added by the reporter. The facts of this case are these; the will of Henry Sealy proved 12th April 1798. Administration, with the will annexed, committed same day to Boreas Fahnestock. 22d September 1802. Settlement of Boreas Fahnestock’s administration account and balance, 4334?. 14s. 3d. • September 24th, 1802, Letters of administration de bonis non with the will annexed of Henry Sealy, granted to Jacob Hants. Release same day by Jacob Hants to B. Fahnestock, for the balance, money bonds and notes, 4384?. 14s. 3d. August Term 1807, the present suit brought. The defendant pleads that he did not assume or promise to pay. 2. That if he did assume, he has paid. 3. That the plaintiff is the wife of the defendant. The pourt affirm the judgment so far as respects the opinion of the Court on this master of fact plea, as decided by the jury. No evidence of any payment appeared or was alleged on the evidence. The whole turned on the ptea of the defendant that he did not assume. This he attempted to make out, hy alleging, that he was not hound to pay until the final settlement of his accounts. The question then will be, whether a legatee must pursue the executors or administrators with the will annexed, through the medium of the Register's Court, and compel a settlement by citation, attachment &c. an;; vast until all is ended here before he can bring a suit. The result of my opinion is, that the legatee may bring a suit without waiting for this, and this as well at common law as on our act of assembly. The proving assets over and above the debts &e. will raise a promise to pay. According to a modern decision, Co-toper 284, an action may be maintained in a court of common law, against an executor in that character, on his express promise to pay a legaej' in consideration of assets. And another case, Comper 289, it was also ruled, that on the same promise grounded on the same consideration, an action will lie against an executor personally in his own right. In another case, 3 Feere Williams 208, some judge's have held, that policy and convenience forbade the courts of common law to entertain this species of action, since they can impose no terns on the party * suing; whereas courts of equity in such suits interfere in a manner highly beneficial to private families. Having no court of chancery, our act of assembly gives the action, and our courts will exercise the. chancery jurisdiction, interposing terms before they permit execution. It is not competent to the executor or administrator to plead non-assumpsit, if he means to rely on not being executor, or no will made or proved, or the will caveated. But all this should be pleaded in the first instance, and shewn specially if he means to rely on it. Frena the circumstances of this case there was reason to believe that the caveat was procured by the defendant, or at least a.continuance of it procured; and there was no way of getting this put in issue before a jury; but by the defendant’s pleading it, and giving the plaintiff an opportunity to reply. Although the defendant obtained letters of administration &c., with an undertaking to settle his administration account within a year, this suit is not brought till five years after, and yet the defendant alleges, that no implied promise could arise, because he had not settled. ~It may be urged as having sonae analogy to this, that where a writ of error is brought against good faith, or where it manifestly appears either from the confession of the parties themselves, or from the admission of the attorney of the .party who sues out the writ of error, or from expressions equivalent to an admission, that it is brought for the mere purpose of delay, it is holden to be no supersedeas. 6 Vin. Sup. 185., 4 Pin. Sup. 70, 71. Action of debt lies on a judgment in a Court of Common Pleas after writ of error brought, ahd the record removed to the Court of King’s Bench. 6 Wils. Bacon 420, 421. An action of trespass for mesne profits, brought pending a writ of error. 20 Pin. 76. Writ of error, only a supersedeas of execution, not of a suit on a judgment. The power of an executor, or the right of a legatee or devisee, is derived from the will, and not from the probate. An ejecutor may file a bill in equity before probate, and a subsequent probate makes the bill a good one. 3 Peere Wms. 351. Ah executor accepts the trust, or administrator^ and sufficient assets come to hand, is he not bound to pay without an express promise, which he cannot be compelled to give! See Bac. Abr. Til. Legacy, Utter M. See letter L. Assent to a Legacy, 4 Massa. Rep. 634., See 2 Dall. 100., 2 Peake’s Law of Evidence 344., 1 Comyn’s Dig. 30., Buller’s N. P. 143., 1 Atk. 293., 1 Saund. Wms. edit. 111, 112, note 2., Ib. 336, note 10., 3 Wils. Bac. 87. letter M., lb. 95., 1 Ld. Ray. 265., 2 Ld. Ray. 1510, 1511. It would shew the necessity of pleading the caveat depending &e., and what took place on the proving the will and the appeal, with a presumption of an abandonment of the appeal, paying costs &c. From all these it is abundantly evident to me, or at least highly suspicious, that the caveat was by collusion, and that the whole was done to baffle the legatee. I incline to affirm the judgment of the Court, that on the plea of non-assumpsit the 4ill ought to have been admitted in evidence. In the case of letters of adminis-. ¿ration and non-iissumpsil pleaded, 2 Ball. J.Q0, seems in point.

Mr. Justice Clark delivered the opinion of the Court, This writ of error is taken to the order and decree of the Court of Common Pleas No. 2, of Philadelphia, awarding a writ of peremptory mandamus. The relator, T. P. Smart, was a contractor of the said city, and the respondent, Robert P. Dechert, controller of the city and county of PliiladelphiaThe alternative writ recited that under authority of an ordinance passed June 24th, 1881, the relator had constructed a sewer for the city, that certain property on the line was not subject to assessment or municipal charge for the construction, and that by an ordinance approved June 9th, 1885, the chief engineer and surveyor was directed to draw, and the city controller authorized to countersign, a warrant for $600, to pay for the construction of said sewer in front of the property referred to; that the chief engineer had drawn the warrant as directed, but the controller had refused to countersign it, and had returned it to the chief engineer, and that the relator had no specific remedy at law for the grievance thus sustained. The controller was, therefore, commanded to countersign the warrant or show cause why he should not. The controller made a formal return to the alternative writ, and to that return the relator filed a demurrer. All matters, therefore, sufficiently set forth in the return must be taken for true, and these with the material allegations of the writ, not traversed by the return, constitute the substantial facts upon which this case is to be determined. The respondent in his return to the writ as the controller of the city and county of Philadelphia, claims to exercise a discretionary power under the law in refusing to countersign the ■warrant referred to, and that in the exercise of that discretion, he was not subject to the direction of the Court; further, that under the provisions of the ordinance of city councils, and by the terms of the contract under which the work was done, the construction of the sewer had been fully paid for; that the city owed no debt, and was under no obligation whatever to the contractor therefor, that the appropriation was therefore not authorized by law, and that in the proper exercise of bis duties as controller, he was required to withhold his signature from the warrant. It is well settled that mandamus will lie to compel the performance by public officers of duties purely ministerial in their character, but it is equally well settled that as to all acts and duties necessarily calling for the exercise of judgment and discretion on their part, mandamus will not lie. Whilst the writ may perhaps be awarded to set the latter class of officers in motion, and to compel action upon the particular matters over which they may have jurisdiction, it will in no manner interfere with the exercise of that discretion nor control or dictate the judgment, or decision which shall be reached. It is unnecessary to quote authorities in support of this plain and well established principle of tlie law; such has been the uniform course of all the decisions, and in this case we do not understand the doctrine to be denied. The question for our consideration, therefore, is whether or not the controller of the city and county of Philadelphia in the exercise ’ of his officg, when called upon to countersign a warrant, is invested with a discretionary power in the performance of that duty, or whether his duty in this respect is merely ministerial. On May 12th, 1866, a general ordinance of councils was approved, providing, for the construction of sewers in said city, that the owners of ground on the line thereof should pay at the rate of $1.25 per foot front; and that bills of assessment at this rate in each case should be prepared by the city. The ordinance provides further as follows: “It shall be a condition of the contracts awarded under the provisions of this ordinance that the contractor shall accept assessment bills as so much cash paid by the citj on the said contract, and that he shall collect the same at his own cost without recourse to the city in any event.” By ordinance approved February 16th, 1869, the rate was increased to $1.50 per foot front. On June 24th, 1881, an ordinance was approved authorizing and directing, inter alia, a sewer to be constructed on Sixty-third street, between Market and Arch, and providing “ that it should be a condition of the contract, entered into on behalf of the city, for the construction of the several sewers therein authorized, that the contractor should accept the sums assessed upon and charged to the properties lying on the line of said sewers, in manner and form authorized by ordinance, entitled, etc., approved May 12fch, 1866, and the supplement thereto approved February 16th, 1869.” On the 19th August, 1881, T. P. Smart, the relator, under a written contract with the city, agreed to construct the sewer on Sixty-third street as authorized by the ordinance of 24th June, 1881; the price and mode of payment were agreed upon as follows: “For sewer, three feet in diameter, per lineal foot and man-holes, the sum of the assessment bills given by the survey department against the properties or premises fronting on the streets on which the sewer forming the subject of this contract is to be constructed, which said bills the said party of the second part agrees to accept in full for all work done under this contract. The said party of the second part further agrees to make no claim whatever upon the city of Philadelphia, excepting upon bills against city property,it being distinctly understood and agreed that the city of Philadelphia does not in anywise guarantee any of the said bills to be good and collectible. Payments for the entire work shall be made by the chief commissioner of highways upon estimates signed by the chief engineer and surveyor in assessment bills, prepared as specified in section 2 of ordinance ‘regulating the assessment upon property for the construction of sewers,’ approved May 12th, 1866, and warrants upon the city treasurer to an amount as authorized by ordinance approved April 3d, 1868, in payment for the street intersections, manholes, and legal deductions. All of which payments shall be received as so much cash, and be collected without recourse to the city of Philadelphia; but for the purpose of the better enabling the contractor to collect the same, the name of the said city may be used, and all her legal remedies, whether by bill or otherwise, employed.” Smart constructed the sewer, and, it is admitted, received the assessment bills in full for the work, according to contract, including two against the Grandom Institute, the property on the east side of Sixty-third street,extending along the whole length of the sewer. He subsequently, on February 1st, 1882, filed in the name of the city of Philadelphia, to his own use, two claims for the construction of the sewer against the Grandom Institute and the said property, which claims are entered in the Court of Common Pleas No. 4, of Philadelphia. Having issued writs of scire facias, the Grandom Institute pleaded nonassumpsit, and that the property was rural; the relator replied that the property was not rural. The relator ordered the cases on the trial list, but no further proceedings appear of record, and the suits remain pending and unsatisfied. By the express terms of the general ordinance of May 12tb, 1866, as well as by the ordinance of June 24th, 1881, under and subject to which the contract was made, as well as by the conditions of the contract itself, payment was to be made in assessment bills, which were accepted as cash, to bo collected at the contractor’s cost, and without recourse to the city in any event. It was expressly provided, also, that the city did not “in any wise guarantee any of the said bills to be good and collectible.” It is plain, therefore, that the city owed Smart nothing for the construction of the sewer; he had been paid in full four j’ears before the ordinance was passed authorizing the warrant, and paid precisely as tile contract provided. It is not pretended that there remained any obligation on the part of the city, moral or otherwise, to pay Smart in any other way. There was no mistake, no change of circumstances, or an3 other intervening matter wliich caused the contract to operate oppressively on the contractor; the parties stood on equal ground, no advantage was taken in the contract, and the law, as well as the facts, was presumably as well known to one pai^r as to the other. When this warrant was presented to the controller for his signature, what was his duty with reference to it? The duties of the controller, in this respect, are defined in various Acts of Assembly, as follows Act 2d February, 1854, see. 12, P. L., 30: “He shall countersign all warrants on tlie city treasury, and shall not suffer any appropriation made by the city councils to be overdrawn, and shall perform all the duties now enjoined by law on the county Auditors. He shall superintend the fiscal concerns of the cityr in such manner, and make reports thereon at such times as shall be prescribed by ordinance.” Act 21st April, 1855, sec. 21, P. L., 269: “It shall be a misdemeanor in office for the controller of the city to pass, or the treasurer of the city to pay, any bill or order for any object not authorized by law.” Act 13th May, 1856, sec. 24, P. L., 572: “It shall be lawful for the city controller, and his duty, whenever required by any citizen, to administer an oath or affirmation to any person presenting a bill against the city as to its accuracy, the prices actually paid, ,or contracted to be paid therefor, whether others and who are interested therein, and as to whatsoever matter he may deem needful to protect the interests of said city.” Act 13th May, 1856, sec. 29, P. L. 573 : “ The city controller shall be and he is hereby required to keep separate accounts for each specific or separate item of appropriation made by the city councils, to each and eveiy department of the city, and. shall require all warrants to state particularly against which of said items the said warrant is drawn ; and he shall at no time permit any one of the items of appropriation to be overdrawn, or the appropriation for one item of expense to be drawn upon for any other purpose by any one of the departments than that for which the appropriation was specifically made; he shall, upon receiving a bill or warrant from any one of the departments, proceed immediately to examine the same, and if the said bill or warrant contain an item for which no appropriation has been made, or the appropriation for which is exhausted, or to which, from any other cause, he cannot give his approval, it shall be his duty immediately to inform such department, and the warrant therefor shall not be issued unless by special authority from the city councils.” By the Act of June 11th, 1879, P. L., 130, the controller is directed not to countersign any warrants until councils have passed the appropriations necessary for each department, and the total of all appropriations, estimates, and obligations, is within the estimate of the income of the city; he is also forbidden to countersign any warrant for the expenditure of money without a previous appropriation. It will be observed that the warrant was from “one of the departments ” of the city government, the department of survey's; it was drawn by the chief engineer and survej'-or, against a particular item in the annual appropriation. It was issued, it is true, pursuant to an ordinance of councils, but all warrants may be said to be so drawn. The power to raise money for city purposes, and also the power to disburse it, subject to certain restrictions, is vested in the city councils, and the warrants, which issue from the several departments, are drawn up under such regulations of the councils as may best serve the public couvenience and promote the dispatch of business. It will also be observed that the ordinance of June 9th, 1885, did not, in terms, authorize the issue of a warrant to Smart, the relator; it directed the chief engineer and surveyor to draw “a warrant, to the amount of 1600, for the construction of a sewer on Sixty-third street,” etc.; it did not name the contractor, or other person, to whom the money was owing; it simpN authorized the application of a portion of item 33, of the annual appropriation, to a particular purpose, but did not designate the party or parties entitled to receive it. Upon receiving this warrant from the department of surveys, it was the controller’s duty to “proceed immediately to examine the same,” and if it contained ail item for which no appropriation had been made, or for which the appropriation was exhausted, “ or to which, from any other cause,” he could not give his approval, it was his duty immediately to inform such department, and the warrant therefor could not again be issued from the department, and presented for his signature, unless by special authority of councils. It was his duty in any case, before countersigning the warrant, to know that the appropriation necessary for each department had been made, and that the total was within the estimate of the income, as required by the Act of 1879; to be satisfied that the warrant covered items for which appropriations had been made, and that these appropriations had not been exhausted, as required by the Act of 1856; these inquiries, as they involved no particular exercise of discretion, are perhaps of a clerical, and therefore of a ministerial character only. But other duties devolved upon him ; as the superintendent of the fiscal affairs of the city, (Act 2d February, 1854,) it was his duty to do what he might “ deem needful to protect the interests of the said city.” (Act 13th May, 1856.) • To this end (Act 2d February, 1854), he was invested with all the powers, and directed to perform all the duties, enjoined by law on county auditors; and as a legal sanction to the just and full performance on bis part of these duties, in the interests of the city, it was declared (Act 21st April, 1855), to be a misdemeanor in office, and to subject him to the pains and penalties of the criminal law, if be should “ pass any bill or order for any object not authorized by law.” It is plainly then the duty of the Controller with due discrimination to determine what “objects” are “authorized by law” for appropriation of the city moneys; he is guilty of a misdemeanor in office if he does not, and the discharge of this duty necessarily calls for the exercise of judgment and discretion on his part. It is his duty, of course, to respect the contracts lawfully made on part of the city, and to discharge the legal obligations of the city, by countersigning warrants, regularly drawn in payment thereof, but it must be conceded that he was not bound to do what in his judgment was by the law positively forbidden. Possessing all the powers of the county auditors, it was his duty to audit, settle and adjust the accounts of the city, and in so doing he could not with propriety or consistency reject a claim which had been previously approved. Iiis jurisdiction as Controller, in the performance of the duties of the county auditors, was as full and complete as that of the courts, and he was entitled to exercise these important functions free from all interference. The Court might, when a proper case was presented, correct an error in judgment on part of the Controller, but they would not bj mandamus interfere in advance with that discretion which it was his right and duty freely to exercise, or dictate the decision which, in a given case, he must reach. In the event of the Controller’s refusal to countersign any warrant, the Courts of the Commonwealth are open for vindication of the claimant’s rights as against the city, and if these alleged rights are submitted to the decision of a Court of competent jurisdiction, and are there finally adjudicated in his favor, either the neglect of councils to provide for payment, or the refusal of the Controller to countersign a warrant in discharge of a legally ascertained liability of the city, would present a different question here. In Runkle v. Commonwealth, 1 Out., 328, the specific question was as to the duties of controllers of cities of the third, fourth and fifth classes, under the Act of 23d May, 1874, yet that case, and the case in hand, are precisely alike in this, that the city controller in both instances was expressly authorized to perform all the duties enjoined by law on county auditors. In delivering the opinion of the Court in that case our brother Gordon says:— “ Upon him also is imposed ‘ all the duties now enjoined on county auditors by the laws of this state, and he shall scrutinize, audit and settle all accounts whatever in which the city is concerned.’ , “ But the powers of county auditors are as full and complete, within their jurisdiction, as are thé powers of Courts. They may issue subpoenas for parties and witnesses; they may compel the production of books and papers, administer oaths, compel the attendance of witnesses, and punish contempts by attachment. With this judicial and deliberative power, the controller of the city of Reading is clothed, and of necessity lie must be left free to exercise his own judgment. But how can he exercise these important functions if he is to be controlled in his judgment by the Court of Common Pleas, or by any other court? “In the present case Controller Runkle, for reasons satisfactory to himself, refused to approve the warrants drawn in favor of Keppelman; this he had a right to do; this it was his duty to do, if he believed the interests of the city would be protected by the refusal of such approval, and we know of no power in the Common Pleas to substitute its judgment for that of this officer. Had the controller refused to act in the matter at all, the Court by its mandamus might have compelled him to act, hut this was all it could do, but after he had acted, and had refused to sanction the warrants it was a mere piece of usurpation on the part of the Court to attempt to compel him to revise his decision, and adopt its judgment in preference to his own. “ The rule governing cases of this kind may be stated as follows: Where a person or body is clothed with judicial, deliberative or discretionary powers, and he or it has exercised such powers according to his or its discretion, mandamus will not lie to compel a revision or modification of the decision resulting from the exercise of such discretion, though, in fact, the decision may have been wrong: Griffith v. Cochran, 5 Binn., 87; Commonwealth v. Perkins, 7 Barr, 42; Commonwealth v. Mitchell, 1 Norris, 313.” The office of the city controller is certainly one of the gravest importance and responsibility; it is not to be supposed that the powers conferred will be prostituted to any purpose of injustice or oppression, but will be exercised in good faith for the protection of the people. We think the office was designed to operate, in the manner indicated, as a cheek upon the city councils, in the appropriation of the public moneys. The city corporation holds its moneys in trust, to be used for legitimate corporate purposes only; there is no authority to apply them otherwise or to bestow them upon those to whom the city was under no obligations whatever. It is the controller’s plain duty, as the representative of the people, and of the city in its corporate capacity, to see to it-that it is not applied to “ any object not authorized by law,” and if in his judgment the warrant in question was so issued, he was justified in refusing to countersign it. The judgment is reversed, and judgment is now entered upon the demurrer in favor of the respondent.

The opinion of the Court was delivered by Gibson, C. J. The Judge put the question of probable cause upon the fact of what the plaintiff had actually sworn before the inquest, and not on the fact of what he was supposed to have sworn. It was a matter of much doubt at the trial of the present cause, whether he had said that the alleged lunatic had been called as a witness in Schoch v. Seibert by the defendant, or not; insomuch, that the witnesses who swore positively about it were divided, even insomuch, that a majority were in favour of the affirmative. In this conflict of perception, then, suppose that the prosecutor had acted on a mistaken belief that the plaintiff had sworn what would undoubtedly have been a perjury, would he not have acted on what appeared to have been justifiable cause; and if he did so act, would it not repel the implication of malice ? Again, if the same misapprehension was entertained by the bystanders, would it not materially increase, in an indifferent mind, the probability of the witness’s guilt ? What is justifiable probable cause, in the technical sense ? It is a deceptive appearance of guilt arising from facts and circumstances misapprehended or misunderstood so far as to produce belief; and when the subject of belief is the crime of perjury, the misapprehension may have regard to the extent of the swearing, as well as the truth of it. The question of probable cause, may as well depend on the one as on the other, the difference being, that a misapprehension or doubt is more likely to occur in regard to the former than the latter. Still, the tenor of the testimony, resting as it does in the understanding and memory of the hearers, who may have misapprehended or forgotten it, may not be accurately perceived by the prosecutor; for the uncertainty of human perception is well known to those who are familiar with the examination of facts depending on oral proof. No two eye-witnesses ever yet exactly agreed in their account of a transaction; and nothing is more frequent than the misapprehension of a person’s words. A by-stander relying on his own ears, may be grossly mistaken; and when the matter has regard to the sum of a witness’s testimony instead of the truth of it, there may be such a mistake as to produce an appearance of perjury sufficient to justify a prosecution of it. If, then, there was a reasonable belief in the minds of the prosecutor and the by-standers that the plaintiff swore to what it is admitted would have been an untruth, whether the belief was well founded or not, there was probable cause amounting to justification. The exception to the sending out of the prosecutor’s affidavit before the magistrate, is not sustained. That document was not a deposition, but an indispensable part of the case put in evidence by the plaintiff himself; and, as such, it does not fall within the rule which excludes a deposition from the jury-room. Judgment reversed, and a venire de novo awarded.

The opinion of the Court was delivered by Gibson, C. J. It is unnecessary to advert to the common-law definition of an office, or to the supposed distinction between offices in the appointment of the executive, and offices within the power of the Legislature by the original constitution. The question for decision turns on the peculiar provisions of the amended constitution, and it lies within almost the bounds of a nutshell. The eighth section of the sixth article declares that “All officers whose election or appointment is not provided for in this constitution, shall be elected or appointed as shall be directed by law.” The election or appointment of canal commissioners was not provided for by the constitution, and it was consequently to be provided for by law. But it was declared by the schedule appended to the instrument (section 11), that “ The appointing power shall remain as heretofore; and all officers in the appointment of the executive department shall continue in the exercise of the duties of their respective offices, until the Legislature shall pass such laws as may be required by the eighth section of the sixth article of the amended constitution; and until appointments shall be made under such laws, unless their commissions shall be superseded by new appointments, or shall sooner expire by their own limitations; or the said offices shall become vacant by death or resignation.” Now, the canal commissioners were officers within the appointment of the executive at the adoption of the amendments, and consequently were to remain in office till laws for elections, or new appointments, should be enacted. But the same section of the schedule directed those laws to be enacted by the first Legislature under the amended constitution.; and as the injunction was not performed by it, the argument on the part of the Commonwealth is that it could not be constitutionally performed by a subsequent one; of course, that the power of appointment remains with the executive. The authority invoked for this interpretation is the decision of this court in The Commonwealth v. Leib, (9 Watts 200), in which it was held that the execution of a power by the first Legislature, as directed by another section of this same schedule, could not be repeated by a subsequent Legislature on pretence that the preceding one had not carried out the views of the convention. The ninth section had directed the first Legislature to divide the associate Judges of the Common Pleas into classes, in order that they might be displaced in turn, according to seniority of commission, in a certain number of years. The classification was made, but the second Legislature undertook to remodel it on the ground of mistake; and this it was held, incompetent to do, not only because the power was a discretionary one, vested in a particular body, which was to judge of the exercise of it, but because it had already been exhausted by the execution of it, and was gone. Being executed, it had become obsolete and incapable of giving authority for further action. What conclusively showed that the exercise of it was limited to the first Legislature was, that subsequent legislation would have come too' late for the object; for, when the second Act was passed, the period for the expiration of the commissions of the first class had already elapsed. How different the case before us, in which the power to enact laws for the introduction of the particular amendment had not been executed at all, and in which the power is not such as must necessarily be exhausted by a single exercise of it! It was a cardinal object of the convention to place the appointment to office, and the patronage consequent upon it, in such hands as the Legislature should from time to time direct; not to have a final disposi tion of it by the accidental action of any one Legislature. The purpose of subjecting it to legislative action at all, was to have the benefit of changes which experience might from time to time show to be expedient. But the power of the Legislature over the classification of the associate Judges was necessarily limited to a single exercise of it; and the act, being done, could not be repeated. It would have been a curious, but by no means an amusing spectacle, to see a class of those Judges, who had retired from the bench under a particular classification, recalled to it and their successors expelled, by the establishment of a new one according to the alternate prevalence of parties in the political arena. To have applied the principle of The. Commonwealth v. Leib to cases of a different stamp, might have led to startling consequences. By the seventh section of the sixth article of the amended constitution, “ Justices of the peace and aldermen shall be elected in the several wards, boroughs or townships, at the time of the election of constables, by the qualified voters thereof, in such numbers as shall be directed by law, and shall be commissioned by the governor for a- term of five yearsand by the twelfth section of the schedule, “ The first election for aldermen and justices of the peace shall be held in the year 1840, at the time fixed for the election of constables. The Legislature, at its first session under the amended constitution, shall provide for the said election, and for subsequent similar elections. The aldermen and justices of the peace now in commission, or who may in the interim be appointed, shall continue to discharge the duties of their respective offices until fifteen days after the day which shall be fixed by law for the issuing of new commissions, at the expiration of which time their commissions shall expire.” Now, on the principle of construction asserted by the Commonwealth, what would have been the consequence if an accidental difference of views between the Senate and the House of Representatives, such as actually occurred in regard to the canal commissioners, had prevented the first Legislature from enacting laws to carry the ulterior provisions of the constitution for the election of aldermen and justices of the peace into effect? , It would have been the frustration of those provisions, and the perpetuation of the old mode of their appointment, with its attendant principle of tenure for life, and with the preservation of a great share of the executive patronage, which it was an especial object of the convention to destroy. That is not all. Though the justices and aldermen would have held their commissions for life, there would have been no power under the constitution to supply their places at their death; and thus this indispensable arm of the magistracy would in the end have been cut off. The eleventh section of the schedule, which provided, that the appointing power should remain as theretofore, was predicated of offices indicated in the eighth sec tion of the article; for it is restrained to officers in the appointment of the executive, whose election or appointment is not provided for in the amended constitution. It was said, in regard to these, that they should continue to exercise their functions till the Legislature should pass such laws as might be required to give effect to the eighth section of the sixth article: and it was consequently in relation to the offices indicated in that section that it was said the power of appointment should remain as theretofore. If that provision were an independent and unrestricted rule of the constitution, it would annul all the alterations for appointment to office, either by the executive or by the Legislature; but it was expressly restricted to officers whose election or appointment is not specially provided for by the terms of the amended constitution. Now, the election of justices and aldermen happens to be thus provided for in the body of the instrument; and it is therefore not within the conservative operation of the eleventh section of the schedule. Can it be thought, then, that by directing laws for the election of justices and aldermen to be enacted at the first session, the convention meant to expose one of its most cherished alterations, and an entire branch of the magistracy, to the chance of destruction from the uncertain action of the Legislature? Perhaps nothing conduced more to the success of the amendments than public clamour against the inferior magistrates; and though it may be entirely true that the quality of these officers has not in any great degree been improved by the change, it is certain that a change was called for by the public, which is all that is required for the argument. The principle of strict construction would frustrate important provisions in every newly constructed frame of government. It was provided by the first article and third section of the federal constitution, that the Senate should be composed of two members from each State, chosen for six years; and that “ immediately” after they should be assembled they should be divided into three classes, in order that one-third of the body might be chosen every year. Yet, on the principle of strict construction, a postponement of the division for a month or a day would have presented an insuperable obstacle to the organization of the government. Necessarily, the paramount rule of interpretation demands that such provisions be deemed only directory, as was the injunction imposed by the seventh article of our constitution, which has been retained by the reform convention, that “ the Legislature shall, as soon as conveniently may be, provide by law for the establishment of schools throughout the State, in such manner that the poor may be taught gratis.” Yet, though it was just as convenient to perform this duty at first as at last, it was not done till half a century had elapsed, and no one doubts for that reason the constitutionality of our system of public schools. Still further. If the power of appointment remains with the executive, it must be because it was vested in him by law at the adoption of the amendments: and it must be exercised in the mode prescribed by the law, without confirmation by the Senate, though it was evidently iutended that no executive appointment by virtue of the constitution should be valid without such confirmation, except that of Secretary of the Commonwealth. Thus would not only the power to appoint canal commissioners remain as it was, but also the power to appoint all officers whose appointment is not specifically provided for in the amended constitution; and thus, too, would the principal part of the executive patronage be restored by an accidental difference of views between the branches of the first Legislature. That difference would have the effect, too, of engrafting on the original constitution a power of appointment which originated in an act of ordinary legislation, and this, too, without submission to or adoption by the people. A constitution is not to receive a technical construction, like a common-law instrument or a statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them; and to that end, its commands as to the time or manner of performing an act are do be considered as merely directory wherever it is not said that the act shall be performed at the time or in the manner prescribed, and no other. The object of the command, in (his instance, was no more than to urge the Legislature to put the elective principle in active operation at the earliest day practicable under all the circumstances, and it has been accomplished. What is this schedule? It is a temporary provision for the preparatory machinery necessary to put the principles of the amendments in motion without disorder or collision. Its purpose was not to control those principles by the happening of an event, but to carry the whole into effect without break or interval. Its use was merely to 'shift the machine gradually into another track, and, having done its office, it was to be stowed away in the lumber-room of the government. Nothing was further from the purpose of the convention than to make anything contained in it a matter of permanent regulation. Its uses were temporary and auxiliary. To suppose that the provisions in the eighth section of the sixth article were to depend for their effect on the sanction or co-operation of the first Legislature, would be to suppose that it was intended to give that body a controlling power over the public will expressed by the adoption of the amendments. It would have been an abuse of the power which the convention had received from the people to delegate any part of it, except for merely ministerial purposes, and especially to delegate it to a body whose action would be final. It is impossible for human forecast to provide against accidents which may stop the motion of an untried machine; and they must be repaired, when they occur, by those who have the management and direction of it. The convention could not foresee the difference which took place between the Senate and the House of Representatives in the first Legislature,; and the great elective principle established in the body of the constitution must not be suffered, for that reason, to fail. It is considered, therefore, that the demurrer of the Commonwealth be overruled; that the plea of the respondents be sustained, and that they go without day. • ’

Opinion by Trexler, J., The information in this case charged that the appellant, Miller, and his codefendant, Burke, whose appeal is not pressed, “made an assault upon your affiant and shot at your affiant with their revolvers a number of times, one of which shots hit your affiant in his left hip and inflicted a serious wound, and said Burke then and there struck your affiant on the head with his fist, and, said William Miller and Burke did then and there otherwise mistreat and abuse your affiant.” Beyond question this information is sufficient to sustain a count for assault and battery and sentence on that count would in any event be imposed. The appellant contends that the information does not afford a basis for the charges of aggravated assault and battery, or wantonly pointing and discharging firearms, and shooting with intent to maim and disable; that the crime of aggravated assault and battery must be committed unlawfully and maliciously; the pointing of a pistol must be wantonly done, and the shooting with intent to maim and disable must, of course, have the intent. That since the intent is not set out in the information, the Commonwealth was therefore confined to a charge of assault and battery. A motion to quash these several counts of the indictment was made and overruled, and the action of the court in so doing, is assigned for error. It is not required that an information be skillfully drawn, and justice might be delayed or sometimes entirely defeated, if the same skill were required in regard to the information as to the indictment. There is no doubt that the defendant upon scrutinizing the information before us knew what the unlawful act was with which he was charged, and was sufficiently informed that he might be put on trial for the crimes charged in the indictment. The fact that the information does not contain as full and specific statement as the indictment, furnishes no ground for quashing the latter: Com. v. Carson, 166 Pa. 179. Our court held in Com. v. Robertson, 47 Pa. Superior Ct. 472, “if the essential elements of the offense be set forth in the terms of common parlance the information will be held sufficient.” The language employed in that case may be repeated here. “The information in the present case informed this defendant in common every day language, that he was charged with criminal acts constituting the of-fences formally set forth in the indictment.” Com- . mitting magistrates are not usually learned in the law, and all that should be required of them, is a plain statement of the charge laid. The putting of it in legal phraseology thereafter becomes the duty of the district attorney. The defendant is said to have shot at the prosecutor with a revolver a number of times, and finally hit him in the hip and inflicted a grievous wound. There is inherent in this statement the idea of intent to do wrong and to inflict injury. As the lower court said, “It would seem certain that an attack resulting in a bullet wound in the hip — a serious wound — would constitute an aggravated assault and battery; that the complaint that the defendants shot with revolvers at the prosecutor a number of times would instantly suggest a count for wantonly pointing and discharging a firearm; and that a competent district attorney would not fail to aver that the shooting was done, in the language of the statute, with intent to maim, disfigure and disable.” The only other matter brought to our attention is the moulding of the verdict by the lower court. The verdict as returned by the jury as it applied to the appellant was, “We find William A. Miller guilty of shooting Forrest E. Whitsel wilfully.” The court directed the jury to revise their verdict. They then returned: “We find William A. Miller, defendant, guilty on all five counts of the bill of the indictment.” The court did not in any sense direct the verdict. The court had the right to see that the conclusion arrived at by the jurors was properly expressed. This was in accordance with the authorities among which are Com. v. Bobanic, 62 Pa. Superior Ct. 40; Com. v. Huston, 46 Pa. Superior Ct. 172, 220; Com. v. Flaherty, 25 Pa. Superior Ct. 490. The colloquy between the court and the jury although referred to by the court in its opinion, is not properly before us, and does not appear in the stenographer’s notes. In the record as presented there is nothing that would warrant us in saying that the verdict rendered was not the free and uninfluenced result of the jurors’ deliberations.' The judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in the court- below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.

Opinion, Me. Chief Justice Paxson : But for a single error, this judgment might have been affirmed. The learned judge below instructed the jury, in his general charge, that “ good character is always of importance and is evidence to be duly considered by the jury, and may turn the scale where there is a reasonable doubt as to the degree or grade of the crime.” See second assignment. This is all the charge contains upon this subject; there was no point put to the court in regard to it. The fact that the homicide was committed by the appellant was not disputed below nor here, nor was there any attempt to show that the offence was manslaughter. The sole question was as to the degree of murder. The jury convicted appellant of murder in the first degree. ' We think the evidence of good character is applicable both to the commission of the offence and the grade of the crime. So far, we are in accord with the trial judge. But we think he stated inaccurately the law as applicable to good character. In Heine v. Commonwealth, 91 Pa. 145, the court below instructed the jury: “ If a man is guilty, his previous good character has nothing to do with the case, but if you have reasonable doubts as to his guilt, then character steps in, and aids in determining that doubt.” This ruling was reversed by this court, Mr. Justice Gordon saying: “ The effect of this was to give the evidence of good character no weight whatever ; for, if the other testimony left in the minds of the jury a reasonable doubt of the defendant’s guilt, this of itself, without more, entitled him to an acquittal. Evidence of good character is not a mere make-weight, thrown in to assist in the production of a result that would happen at all events; but it is positive evidence, and may of itself, by the creation of a reasonable doubt, produce an acquittal: ” citing Whart., Crim. Law, § 643. In Hanney v. Commonwealth, 116 Pa. 323, the court below fell into the same error as in Heine v. Commonwealth, supra, and upon its review in this court the judgment was reversed, Justice Gordon repeating and amplifying his remarks in the former case. It was urged, however, that Kilpatrick v. Commonwealth, 31 Pa. 198, sustains the ruling of the court below. The portion of the charge assigned as error in that case is as follows: “ The evidence proves the defendant to have borne an excellent reputation ; originally, evidence of good character was not allowed to go to the jury, when there was positive proof of the commission of an offence, for if one was seen to commit a murder with deliberation, although he had borne an irreproachable character, and were even an angel, he would yet be guilty. The rule of law in this state, however, permits evidence of good character to be submitted to the jury in every case of homicide, no matter what may be the other testimony in the cause. But when a doubt suggests itself to your minds, as to the prisoner’s guilt upon the facts of the case as presented by the evidence, the' law easts the whole weight of the prisoner’s former good character in mercy’s scale, and settles the question in favor of the accused.” In commenting upon this language, this court said, through Mr. Justice Strong : “ The final exception is that the court erred in the instruction which they gave to the jury, respecting the evidence of the prisoner’s good character. This, like the former, is based upon a misconception of the eharge. We do not understand the purport of the instruction to have been such as it is contended to have been by the counsel for the plaintiff in error. The substance of the charge was that the law permitted evidence of good character to be submitted to the jury (of course for their consideration) in every ease of homicide, no matter what might be the other testimony in the cause, and that, when a doubt arises as to the guilt of the accused, such doubt was conclusive in his favor. This by no means confined the jury to attaching importance to the evidence only in cases of reasonable doubt. On the contrary, it left them at liberty to make it a basis for the formation of a doubt.” • I have been thus careful to quote the exact language of the court below and of this court in Kilpatrick v. Commonwealth, as I fear it has been misunderstood in some instances. The distinction between the two cases, briefly stated, is this: In the case in hand, the benefit of good character was limited to cases where there is a reasonable doubt of the guilt of the accused, or, in the precise language of the court below, “ may turn the scale where there is a reasonable doubt as to the degree or grade of the crime; ” while in Kilpatrick v. Commonwealth, the language of the court below, while not as explicit as in some of the later cases,—to repeat again the language of Justice Strong,—“by no means confined the jury to attaching importance to the evidence only in cases of reasonable doubt. On the contrary, it left them at liberty to make it a basis for the formation of a doubt.” There is nothing in the charge of the court below from which the jury could fairly infer that the evidence of good character might create the reasonable doubt which entitles the prisoner to a safe deliverance. It is true that the difference in phraseology in the two cases is apparently slight. There is, however, a real and substantial difference ; and, where a man’s life may depend upon a single word, the use of language cannot be attended with too much care. We might cite numerous other cases upon this point, but the law is too well settled to require it. The rule' deducible from the authorities may be briefly stated thus: Evidence of good character is always admissible for the defendant in a criminal case ; it is to be weighed and considered in connection with all the other evidence in the cause,—it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal. The rule itself is not mei’ely merciful. It is both reasonable and just. There may be cases in which, owing to the peculiar circumstances in which a man is placed, evidence of good character may be all he can offer in answer to a charge of crime. Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril ? The vice of this portion of the charge is in the instruction that good character “ may turn the scale where there is a reasonable doubt as to the degree or grade of the crime.” But, if the other evidence .is such .as to raise a reasonable doubt whether the grade of crime was mur der in the first degree, then the jury are bound to acquit of that offence; so that, as was observed in the cases cited, “ this was to give the evidence of good character no weight whatever.” The evidence of good character is to be considered with the other evidence in the case, and if it all combined creates a reasonable doubt, the defendant is entitled to an acquittal. The learned judge below evidently was of opinion that the evidence of good character had little bearing upon the case. I gather this from his opinion refusing a new trial, in which he said, in commenting upon this portion of his charge : “ Of this instruction the defendant has no cause of complaint. It was as favorable to him as he could ask. In fact, as the commission of the crime by the defendant was not disputed, and the only question for the jury to determine was the grade or degree of the crime, and as the determination of that question depended upon the mental condition of the defendant, whether intoxicated or not, we are of opinion that the evidence of the defendant’s good character had little relevancy.” We do not think the premises upon which this conclusion was drawn are entirely accurate. We do not understand that the commission of the crime was undisputed by the defendant. It is true the commission of the homicide was conceded, but not the commission of murder in the first degree. That was the crime for which he was on trial, and of which he was convicted. The commission of that offence was disputed below, and also in this court. Nor did the question of the degree depend alone “upon the mental condition of the defendant, whether intoxicated or not.” The jury found that he was not intoxicated to the extent of preventing his forming the wilful, deliberate, and premeditated intent to take the life of the deceased. J ust here is the place where the evidence of good character was entitled to come in, and have its due weight. Here was his supreme peril. The defence of intoxication had failed. If a man’s good character is to avail him at all, when does he need it more than when a jury is deliberating upon the question whether he had formed in his mind the deliberate intent to take a human life ? It might not have availed anything in this case; we are not considering the weight of the evidence upon this point, that was for the jury; but it should have been submitted to them is such manner as to give them a proper understanding as to how they should apply it. We cannot treat this as an immaterial matter which did not prejudice the defendant. It may not have done so, but we caunot say so. The issue of life and death is so vast, both as to this world and the next, that it is our duty to weigh every word carefully, and leave nothing to conjecture. As the case must go back for another trial, it is proper to say that we do not discover any error in the remaining assignments. The testimony of Dr. Reese, referred to in the first assignment, was properly rejected. It was not competent to prove the defendant’s intoxication by showing the condition of Belford, who was with him, and had taken the same number of drinks. Some men can drink twice as much as others without showing it. The inquiry would have involved a collateral issue which might have confused, if not misled, the jury. The remaining assignments refer to the charge. With the single exception above noted, we find no error in it. Judgment reversed, and a venire facias de novo awarded.

Opinion by Mr. Chief Justice Paxson, We need not discuss the effect of the amendment of the charter of the defendant company by the court of common pleas of Montgomery county, by which it was authorized to extend its road. That decree stands unreversed and unappealed from, and under it, and in entire good faith, the defendant has made the extension of its road of which the commonwealth through its attorney general now complains. Upon the faith of this decree the defendant has expended a large amount of money without any warning on the part of the commonwealth of any objection on her part. The defendant company was acting under color of authority, in pursuance of a decree of one of the commonwealth’s own courts, and it seems ungracious on the part of the commonwealth after permitting the company to expend a large amount of money in extending their turnpike road to question years afterwards the regularity of the proceedings under which the expenditure was made. Were the complainant here a private individual we would not hesitate to say that his laches was a bar to this proceeding. Is the commonwealth in any better position ? We think not. It is true, the statute of limitations does not run against the commonwealth. But this is not a question of the statute of limitations. It is a question of laches, and laches may be imputed to the commonwealth as well as to an individual. While the authorities upon this subject are not abundant, there are sufficient to justify the position now assumed. Equity is as much a part of the law of Pennsylvania as it was in 1787 when Chief Justice McKean so declared it to be in Pollard v. Schaaffer, 1 Dallas, 210; see Church v. Ruland, 64 Pa. 432. In England, from whence we derived the great body of common law, and most of our principles in equity, it is well settled that while time will not run against the crown, yet time, together with other elements, may make up a species of fraud and estop even sovereignty from exercising its legal rights. In the case of the Attorney General v. Johnson, 2 Wilson Ch. 102, there was an attempt on behalf of the crown to restrain a purpresture in the river Thames. The court refused to entertain the bill because of the delay on the part of the attorney general in instituting the proceeding. In the case of the Attorney General v. Sheffield Gas Consumer’s Co., 3 De G., M. & G. 304, the real parties complainant after having failed in a direct attempt, as here, procured the attorney general to file an» information and bill on behalf of the public to restrain the gas company from digging up the highway for the laying of pipes. That case was originated precisely as we understand this to have been. There is nothing to show that this proceeding was directed by command of the commonwealth. On the contrary, it is at least alleged to be the act of private parties who have induced the attorney general to allow his name to be used as representing the commonwealth. In the case referred to the injunction was refused on the ground that the defendant company’s plans and acts were notorious, and that the delay of the attorney general, while the defendants were expending money in the construction of their works, disentitled even the public to relief. The same rule has been held in the neighboring state of New Jersey. In the case of the Attorney General v. The Delaware and Bound Brook Railway Company, 27 New Jersey Equity, 1, the defendant company was constructing a bridge across the Delaware river without having, as it was alleged, legislative authority therefor. An information was filed by the attorney general alleging that the defendants were guilty of a purpresture, that the bridge was a public nuisance, and asking for a decree of abatement. In that case it was' held that where a party acting bona fide, and upon its not unreasonable construction of a public grant, has been permitted to expend a large sum of money in the construction of a public work, in the confidence that it possessed all requisite legislative authority, without a word of protest or remonstrance till the work is practically completed, equity will refuse its aid, even to the state, leaving it to its remedy at law. It was said by the chancellor in that ease: “ The work has been, from its commencement, a matter of public notoriety, and yet no action has been taken on the part of the state authorities, nor even any warning offered by them against the work. The defendants have been permitted to make their immense expenditure upon their enterprise in the confidence of their convictions that they possessed all requisite legislative authority without even a word of protest or remonstrance. Under such circumstances, equity will refuse its aid, even to the state, leaving it to its remedy at law.” In the case in hand, were we to consider that the order of the court amending the company’s charter was ineffectual as concerns the extension of its road, it yet clearly appears that said extension was made under a mistake and belief as to the company’s legal right, honestly entertained and based upon an order of one of the commonwealth’s courts, which order stands unreversed and nnappealed from; that the company has made a large expenditure of money on the faith of this mistaken belief ; that the commonwealth knew, or ought to have known, and is chargeable with knowledge of this expenditure, and with knowledge of the company’s mistaken belief, and encouraged that expenditure by neglecting or abstaining from asserting the commonwealth’s rights. It may be said, however, that this suit is a proceeding at law and that, therefore, the cases cited do not apply. But the remedy at law intended to bo left open by the decisions in equity is not such a proceeding as would be practically the equivalent of a bill in equity. This quo warranto aims at the destruction of defendant’s property. A bill in equity could do no more. The remedy at law referred to is not one which would accomplish the same results as a mandatory injunction, such as a writ of quo warranto, or an indictment for maintaining a nuisance. It means merely an action at law to recover damages for any injury sustained. Under these circumstances, we are of opinion that the commonwealth is not entitled to judgment in this proceeding. Judgment affirmed.

Opinion by Mr. Chief Justice Moschzisker, Plaintiff Fehr, claiming to be a holder in due course, sued on a $10,000 promissory note, made by defendant Campbell to his own order and endorsed by him to the Franklin Operating Company, from whom Fehr acquired it for a valuable consideration; judgment was entered on a verdict for plaintiff and defendant has appealed. At trial, it developed that defendant had previously sued plaintiff and others, in equity, claiming that he had been defrauded into giving the paper in question. The record of the equity suit was placed in evidence in the present action and showed a conclusive finding that the note had been obtained from Campbell by fraud of Solon A. Stein, the Franklin Operating Company and several others, but there was no finding connecting Fehr with such wrongdoing, as he acquired title to the note some time after the perpetration of the fraudulent acts found in the equity suit. The chancellor in that case ordered that the present action at law should be proceeded with for the purpose of ascertaining whether the plaintiff herein is a holder in due course, or whether, on the contrary, notwithstanding his nonparticipation in, or lack of knowledge of, the fraud by which the note was originally procured, he took the instrument under circumstances which would cause Mm to hold it subject to Campbell’s defenses against those from whom he, Fehr, had acquired title. After proving the note, and its purchase from the Franklin Operating Company, through the president of that concern, Sólon A. Stein, plaintiff rested, and defendant then offered in evidence the record in the equity suit, to show that he had been defrauded into giving the paper. Plaintiff then undertook in rebuttal, as was his duty under the law (Negotiable Instruments Act of 1901, P. L. 194, sec. 59; Second Nat. Bk. v. Hoffman, 229 Pa. 429, 432-3; Levy v. Gilligan, 244 Pa. 272, 276-7; Putnam v. Ensign Co., 272 Pa. 301, 305-6; Harponola Co. v. Wilson, 96 Vt. 427, 435-6, 120 Atl. 895, 898-9), to show that, despite the fraud which had been committed against defendant to obtain the note, he, plaintiff, was a holder in due course, and, therefore, not subject to the defense of prior equities. Plaintiff testified that the note had been acquired by him from president Stein of the Franklin Operating Company for $6,000, on an agreement between them that the $4,000 above the $6,000 which he, plaintiff, gave for the paper, should be used by him as follows: $1,700 thereof to be appropriated to the payment of debts which Stein personally owed to plaintiff, and the balance of the $4,000 to be returned to Stein for the Franklin Company when the note should be paid. Plaintiff also testified that, in point of fact, immediately upon acquiring the instrument, he entered a credit on his books to Stein of $1,700, and thus cancelled the latter’s personal debt. When asked whether Stein had said why this $1,700 should be taken out of the proceeds of a note admittedly owned by his corporation, plaintiff replied, “Why, he said the company owed him money that he had advanced, and then, with the money he would pay us, he could square that up with the company, he could easily fix it up that way.” The vague testimony just quoted constitutes the only explanation on the record of plaintiff’s action in entering into an agreement, when he acquired the note from the Franklin Company, through its president, that $1,700 of the property of that concern should be appropriated to the payment of Stein’s personal obligations to him, Fehr. Again, the only explanation made by plaintiff as to why, in the present suit, he pressed to recover only $6,000, in place of the full $10,000 or face of the note, was that he had been advised by counsel to pursue that course “on account of the Franklin Operating Company being out of existence”; yet plaintiff said he knew that the company had creditors Avho, of necessity, would have an interest in the balance of the note over the $6,000 which he was pressing to recover. In point of fact, the company was insolvent, which fact, no doubt, proper inquiry would have disclosed. Plaintiff testified that he made no inquiries Avhatever of the Franklin Company or others, not even to ascertain whether its president had authority to sell paper owned by that concern. At a prior trial of this action at law, the jury found in favor of defendant; the court below, however, set the verdict aside and granted a new trial. At the second trial, the one now under review, the issues, on which depended the essential finding that plaintiff was a holder in due course, Avere not submitted to the jury in a commendatory manner, but no assignments of error have been filed complaining of this, the sole assignments being (1) the refusal to enter judgment in defendant’s favor n. o. v., and (2) the prior grant of a new trial. Of course, we cannot consider this second assignment at all, for, if defendant was aggrieved by the ruling therein called to our attention, he should have appealed at the time the order was entered. As said before, when fraud in the inception of the note had been shown, plaintiff, in order to free himself from the effect of this defense, was bound to prove that he was a holder in due course; hence the broad question involved under the first assignment of error is, whether, on the evidence at the trial, it was not the duty of the court below to have ruled, as a matter of law, that plaintiff had failed to sustain the burden thus cast upon him. Though defendant intimates that plaintiff must have known of the circumstances attendant on the making of the note in suit, yet it is clear from the testimony that there could have been no ruling as a matter of law, or finding as a matter of fact, that Fehr had actual notice of the fraud originally practiced by others on Campbell, the maker; this being so, we have approached the problems before us for solution on the basis of plaintiff’s ignorance of that wrongdoing, and on the theory that, if he is not entitled to the protection accorded to a holder in due course, the reason must be found elsewhere. Thus we are obliged to scrutinize the bargain whereby plaintiff acquired the note, for appellant points to this as the weak spot in his opponent’s case, claiming that transaction to be so tainted by its intrinsic facts as to prevent anyone acquiring rights thereunder from occupying the favored position of a holder in due course. In short, defendant contends that plaintiff, by permitting the note to be negotiated to him under the circumstances shown by his own testimony, connived at and participated in what, unexplained as it is, bears the mark of fraudulent conduct, or lack of good faith, on the part of Stein toward his company and its creditors. Aside from the evidence to be found on the note itself, it is clear beyond question from plaintiff’s testimony that he knew the instrument was the property of the Franklin Operating Co., yet he made no attempt to show that Stein, the president of that concern, through whom he acquired the paper, had authority to transfer it to' pay his personal indebtedness, — as Stein was doing, at least in part; therefore, it can well be found that plaintiff failed to overcome the prima facie lack of such authority and the consequent presumption of commercial bad faith which adhered to the transaction. Prima facie, an officer of a corporation has no authority to use its funds or securities to pay his private obligations or as collateral for his personal loans; and it is well settled that one who takes negotiable paper which appears to be, or which the taker knows to be, the property of a corporation, for the purpose of applying such paper to the personal use of one of the officers of such corporation, or of a third party, is bound to inquire as to the authority of the officer to make such use of the paper; and if no inquiry be made, the taker is held as though he had knowledge of all that inquiry would have revealed; finally, if it is not affirmatively shown that inquiry would have revealed facts sufficient to overcome the prima facie misappropriation, the presumption of bad faith remains: Garrard v. Pittsburgh & C. R. R. Co., 29 Pa. 154, 159; Schmitt v. Potter T. & T. Co., 61 Pa. Superior Ct. 801, 307-8; Odd Fellows Home v. Velenchick, 73 Pa. Superior Ct. 153, 155-6; Ward v. City Trust Co., 192 N. Y. 61, 70, 84 N. E. 585, 588; Fisk Rubber Co. v. Pinkey, 100 Wash. 220, 227-8, 170 Pac. 581, 583; Johnson-Kettell Co. v. Longley Co., 207 Mass. 52, 56, 92 N. E. 1035, 1037; Dennis Metal Co. v. Fidelity Tr. Co., 99 N. J. L. 365, 368, 123 Atl. 614, 615; McDowell v. Bauman, 189 Ky. 136, 138-9, 224 S. W. 641, 642. Even if it had been shown as a matter of fact (which there was no attempt to do) that Stein did have valid claims against the Franklin Company (as he asserted), his vague declaration that he would “fix up” the use of the note for his personal debt, in a future settlement of amounts owed him by the corporation, would not aid plaintiff, since a corporate officer lacks authority to adjust in any such manner claims which he may hold against his own company: Schmitt v. Potter T. & T. Co., 61 Pa. Superior Ct. 301, 309. By applying the above-stated legal principles to the facts in this case, it may be seen that plaintiff undoubt edly took the present note in a transaction whereby he sought to profit through dealings which, in the absence of an exculpatory explanation, must be stigmatized as forbidden by law. Having reached this point, we are still faced with the problem, Do the irregularities which figured in plaintiff’s acquisition of the instrument subject him to the maker’s defense of fraud in the original procurement of the note from the latter? To put the question in other words, Can plaintiff thus be prevented from occupying the position of a holder in due course? For, under established law, if plaintiff is not a holder in due course, he holds the note subject to any defenses the maker may have against Stein and the Franklin Co., plaintiff’s sole predecessors in title, since, as an ordinary purchaser, he would acquire only such rights as they possessed, and he would take those rights subject to any equities or defenses which might exist against them. Thus appears the importance of determining whether plaintiff is a holder in due course or only an ordinary purchaser, and in this regard the situation is somewhat unusual, in that the circumstances upon which plaintiff’s legal status hinge concern dealings between him and others who are not parties to the present suit, and these circumstances are distinct from the facts of the original fraud, upon which defendant resists payment of the note; therein lies the difference between the case at bar and the majority of those that have come before the courts, and these distinguishing features must be kept in mind as we proceed. Section 52 of the Negotiable Instruments Law, Act of 1901, P. L. 194, provides that “A holder in due course is a holder who has taken the instrument under the following conditions:......(3) That he took it in good faith and for value; (4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or of defect in the title of the person negotiating it.” Did plaintiff take this note in what the law would consider good faith? Again, Did Plaintiff not have notice of a defect in the title of Stein, who, in negotiating the paper to him, plaintiff, treated $1,700 of the obligation as though it belonged to him, Stein, personally, rather than to his corporation? The freedom from the defense of prior equities afforded to a holder in due course is an extraordinary protection, which, although having its origin in the law merchant, is closely akin to> similar protection given in other types of cases by courts of equity; and running through all the authorities dealing with holders in due course we find the principle, not always stated, perhaps, that he who seeks the protection given one in that position must have dealt fairly and honestly in acquiring the instrument in controversy and in regard to the rights of all prior parties; this is the kind of good faith which the law demands, and the principle is closely analogous to the equitable doctrine of clean hands. As said in Goodman v. Simonds, 20 How. (U. S.) 343, 366, “Everyone must conduct himself honestly in respect to antecedent parties, when he takes negotiable paper, in order to acquire a title which will shield him against prior equities.” Again, in Adams v. Ashman, 203 Pa. 536, 542, we find the following: “The manner in which the note was handled......did not exhibit on the part of the plaintiff that entire good faith which equity exacts of one who would deprive a defendant of the right to set up the true condition of affairs as a defense.” In Johnson-Kettell Co. v. Longley Co., 207 Mass. 52, 56, 92 N. E. 1035, 1037, the court said: “Where......the transaction ......on [its] face......is an appropriation of the corporation’s money to the payment of the individual’s debt [it] is bad unless shown to be good; since the transaction is bad unless shown to be good [in the absence of proof as to the validity of the transaction], no question of purchase in good faith can arise.” And in McDowell v. Bauman, 189 Ky. 136, 224 S. W. 641, 642, is the following : “McDowell cannot be regarded as a purchaser in good faith, for, when his attorney......received the check, the check itself was notice of the fact that it was drawn on the funds of the corporation to discharge the obligation of a third party.” See also Pelton v. Spider Lake Co., 132 Wis. 219, 112 N. W. 29; Kenyon Co. v. Nat. D. Bk., 140 Ky. 133, 130 S. W. 965. These cases, and others which we shall mention, all show, if nothing more, that, to constitute the taker a holder in due course, the paper in question must be acquired, by one so claiming, in a manner entirely free from unlawful bargaining, particularly of the character shown by the evidence now before us. Let us turn to decisions that deal with the taking of paper under circumstances most nearly approximating those in the case at bar. In Ward v. City Trust Co., 192 N. Y. 61, 69, 73, 84 N. E. 585, 587, 589, the check of a third party, payable to the order of a manufacturing corporation, had been endorsed by the president and general manager of the latter and delivered to the trust company defendant, in payment of a personal loan obtained by such president for himself. In a suit, by the assignee for creditors of the corporation, against the trust company, to recover the amount of the check, the New York Court of Appeals said that “the form of the check in question was a notice to the trust company that Umsted [president of the manufacturing corporation] was using the property of the corporation...... to pay the personal debt of himself......in apparent violation of its rights......The effect of such notice was to put the trust company upon inquiry to see whether it was about to accept money from one to whom it did not belong......The presumption arising from the face of the check was that it belonged to the [corporation], and its president had no right to use it to pay his personal debt.” The court further said, “While Umsted [the president] owned all the stock [of the corporation], still the rights of the creditors remained, even if the corporation and stockholders were ready to give away every right within their power.” Then, again, “It was not enough for the trust company to part with value,......it was bound to act in good faith in order to get good title......; bad faith in taking commercial paper does not necessarily involve furtive motives, for it exists when the purchaser has notice of facts which, if unexplained, would show that he was taking the property of one who...... owed him nothing in payment of a claim that he held against someone else ” Applying these principles to the present case, we find that Fehr took $1,700 of the property of the Franklin Company, which owed him nothing, in payment of claims that he held against someone else,— the president of that concern; and, as we have seen in the Ward Case, this state of affairs has been held to constitute such bad faith as would prevent one so placing himself from occupying the favored position of a holder in due course, or, as said in that opinion, “In a commercial sense [the person acquiring the paper] acted in had faith, and [under such circumstances] the law will withhold from him the protection that it would otherwise extend,” i. e., the protection extended to a holder in due course. Of course, in the Ward Case the president of the corporation received personal credit for the whole face value of the paper in controversy, while in the present case he received personal credit for only a portion of the face value of the paper; but his improper conduct, knowingly participated in by Fehr, the plaintiff, affected the whole transaction with a taint of bad faith just as much as though Stein had been given personal credit for the full face value of the note. In Garrard v. Pittsburgh & C. R. R. Co., 29 Pa. 154, 158, we said, “A purchaser [of a bond] with notice that [its] sale is a breach of trust, or a fraud upon the rights of the real owner, is particeps criminis with the fraudulent vendor, and his purchase cannot protect him against the owner, because such a purchase is not bona fide.” The same principle applies in the case now before us. Here plaintiff purchased the paper in controversy with notice that, at least as to $1,700 thereof, the sale was a breach of trust toward the apparent owner of the note and its creditors; to this extent he, as purchaser, was particeps criminis with the fraudulent vendor. This prevents plaintiff from being a holder in due course, and hence his purchase cannot protect him against the real owner of the note, who, in this case, owing to the fraud that had been committed in its procurement, was the maker of the instrument, the present defendant. The Franklin Company, though apparently the owner, really held title to the note as trustee ex maleficio for Campbell; but this cannot in any way accrue to the benefit of plaintiff, who joined in the wrongful negotiation of the note to himself on the basis of the Franklin Company being the real owner of the paper, and who now claims to have had no knowledge of any underlying interest possessed by Campbell. Plaintiff’s attitude was one of bad faith, and it cannot matter, so far as his standing as a holder in due course is concerned, whether the equitable title to the note was in the Franklin Company, the apparent owner, or in another. In McConnell v. Hodson, 7 Ill. 640, 648, it was adjudged that one who took an assignment of unendorsed notes payable to the administratrix of an estate, as security for a personal debt of the husband of such administratrix, could not be a holder in due course. In that instance the decedent’s estate had been settled, the wife was an heir, the husband had possession of the notes and actually delivered them to the purchaser, and there was no notice of an outstanding interest except that which appeared on the face of the instruments themselves. The maker of the notes, one Saunderson, was named as a defendant, but the real contest was between the plaintiff, McConnell, who held them as collateral, and the other defendant, Hodson, who had delivered them to McConnell to secure his, Hodson’s, personal indebtedness. The following statement in the opinion, as to the effect of knowingly purchasing commercial paper from one who holds it in a fiduciary.capacity, is pertinent here: “If... .such a sale is made by [a fiduciary] in payment of his own private debt, it is ipso facto a misapplication of such funds, and fraudulent and void as to those for whose benefit the estate or property is holden.” In Fisk Rubber Co. v. Pinkey, 100 Wash. 220, 227-8, 170 Pac. 581, 583, Pinkey, the defendant, had given commercial paper to a land company in a transaction which proved to be fraudulent toward him. The president of the land company used one of these notes in the purchase of an automobile for himself, personally. The note was pledged as collateral by the automobile dealer, and finally came into the hands of the plaintiff company as collateral, and the latter brought action thereon against the maker. Recovery was denied, the court saying that the president’s endorsement of the note made it the promise of the corporation to pay the face thereof “as much as if [the president] had executed the note of the corporation payable to himself and endorsed it in the same way.” Then the opinion writer adds: “No person can be a bona fide holder of a promissory note executed by an officer in the name of the corporation, and payable to the officer executing it, as an individual. Where an officer of a corporation makes its commercial paper payable to his own order, signs it as such officer, and transfers it in payment of an individual debt, it is held that the transferee is not a bona fide purchaser thereof without notice, since the facts appearing on the face of the paper are sufficient to put him on inquiry as to its ownership: 3 Ruling Case Law 1085.” The court stigmatized the transaction before it as “out of the ordinary course of business,” saying that it “imports unfairness on its face” and adding that, when paper is so acquired, “unless the authority of the officer is made to appear by affirmative proofs, or it is shown that the corporation has acquiesced in or ratified the act, the paper is subject to defenses, although in the hands of one who took it before maturity and for value,” meaning, necessarily, defenses set up by tbe maker of the note, for, in the case under discussion, as in the present one, the maker was the defendant at bar. The court further said that the maker of the note was entitled to set up the original fraud as a defense, because the transaction in which the holder took the instrument cast a “shadow” on it, and, under the circumstances, the holder “could not in good faith” accept the note with this shadow upon it. Then these significant words appear: “While the courts are careful to guard the interest of commerce by protecting the negotiation of commercial paper, they are also careful to guard against fraud by defeating titles taken in bad faith, or with knowledge, actual or implied, which amounts to bad faith, when regarded from a commercial standpoint.” The case last mentioned is in most of its essential points much like the one now before us on appeal. In both of them, the circumstances on which plaintiff’s status as a holder in due course hinged concerned a transaction .between plaintiff, or those under whom he claimed, and the president of a corporation, who in the transaction in question had acted illegally toward his company, neither the corporation nor its president being parties to the suit before the court and the circumstances under inquiry being distinct from the circumstances of the original fraud upon which the defendant resisted payment of the note in suit. It is but fair to call attention to the fact, however, that in most of the cases previously discussed in this opinion, the act of bad faith which prevented the owner from being a holder in due course was toward a party to the suit then before the court, and not, as here, toward an outside party, — the corporation which held title to the note when it was negotiated to plaintiff, put we are of opinion that this difference has no bearing on the principle involved, since all the cases on the subject, no matter at what point they touch it, indicate the demand for good faith on the part of one who takes a negotiable instrument as a requirement of general good faith; if such a person, when acquiring title, acts in bad faith in any material particular toward one to whom the party he is dealing with owed good faith, he cannot be a holder in due course, and this is true no matter who, so situated, is immediately affected by his misconduct. When we apply this principle to the case at bar, plaintiff, having shown his own participation in the illegal conduct of Stein, the president of the corporation from whom he took the note in suit, convicts himself of bad faith, and consequently cannot be a holder in due course. Thus far we have considered the case before us on general principles and under the “good faith” requirement of section 52 of the Negotiable Instruments Act; this section demands also that a holder in due course shall have taken the instrument without notice of any infirmity in the paper itself or defect in the title of the person negotiating it; then sections 55 and 56 define such defects and notice. Section 55 provides that “The title of a person who negotiates an instrument is defective, within the meaning of this act, when he ......negotiates it in breach of faith or under such circumstances as amount to a fraud.” Section 56 provides that, “To constitute notice of infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.” Application of the last-mentioned sections of the act to the present case leads to the same result as is reached under the “good faith” clause of section 52. However illogical it may seem to say that one’s title to a commercial instrument may be made defective by reason of acts done by himself in transferring it to another, that is exactly what section 55 declares to be the law; ne gotiation of an instrument in bad faith, or fradulently, constitutes a defect in the title of the negotiator. Even though the terms used may seem incongruous, the substantial result is righteous. The term “defect of title” is employed only in connection with the establishment of the status of holders in the course, and as so used serves a desired and proper purpose. The object of the latter part of section 55, when taken in connection with section 56, is to prevent one from becoming a holder in due course who takes an instrument with notice that his transferrer is not acting honestly. It is the same object as is found in the “good faith” clause of section 52, but viewed from a somewhat different angle; that clause has regard to the attitude of the taker of the instrument; while section 55 emphasizes rather the honesty of the negotiator as brought to the notice of the taker. The object of the whole is, however, a single one, — to require a thoroughly honest and fair transaction to constitute one a holder in due course. That the sale of the note to plaintiff, Fehr, partly in payment of the personal debt of Stein was a negotiation in breach of good faith toward the corporation which held title to the instrument and its creditors, if, indeed, it was not a fraud upon such rights as they may have possessed, needs no further argument. At the time of the transaction between Stein (the president of the corporation) and Fehr (plaintiff) there had been no attack by Campbell (maker and present defendant) on the validity of the note and no adjudication of its invalidity; hence it constituted an apparent valuable asset of Stein’s company, and the record indicates the insolvency of that concern at the time in question. The company received $6,000 from plaintiff for this $10,000 note, but Stein transferred the entire instrument to Fehr, thus putting out of the control of his company the recovery of the balance of $4,000, and making it possible for Fehr, if it suited or tended to advance his personal interests, to remit, as he in fact afterwards did, that amount in pressing suit on the note. Fehr must have known that Stein acted wrongly when, in this manner, he put it within the power of another to prejudice possible rights of his corporation and its creditors. Again, plaintiff took the note under circumstances which in law charge him with knowledge of, and participation in, a direct act of bad faith on the part of Stein, for he, Fehr, actually assisted Stein to appropriate $1,700 of the note as his own property, by enabling him to use the paper to that extent in payment of his personal debts. Therefore, under section 55 and 56 of the Negotiable Instruments Act, Fehr accepted the instrument in suit with knowledge of a defect in the title of a person who negotiated it to him, and is barred on that ground from claiming the rights of a holder in due course. We may add at this point that plaintiff cannot rid the transaction under which he acquired title of the taint of illicit dealing which characterizes it, by the simple expedient of failing to press for the recovery of the $1,700. In many cases decided prior to the passage of the Negotiable Instruments Law, the requirement is found that, in order to be protected from the defense of prior equities, the holder must have taken the instrument “in the regular course of business”: Kuhns v. Gettysburg N. Bk., 68 Pa. 445, 448; Roberts v. Hall, 37 Conn. 205, 211; Pennington County Bank v. First State Bank, 110 Minn. 263, 266, 125 N. W. 119, 121; McConnell v. Hodson, 7 Ill. 640, 648. In discussing this phrase, “the regular course of business,” the court, in Roberts v. Hall, supra, said (p. 212) that a more definite idea of its meaning as applied to a particular case might be gained by stating the questions, “Is negotiable paper ordinarily used in the way and manner in which [the paper now before us] was used? Would a business man of ordinary intelligence and capacity receive commercial paper, when offered for the purpose for which this [paper] was transferred, as money, and, upon its credit, part with his property? Or would he at once suspect the integrity of the paper itself and the credit and standing of the party offering it?” and the court determined that, “A correct answer to these questions- must settle conclusively the mercantile character of the [ordinary business] transaction involving the transfer of commercial paper.” The Negotiable Instruments Act was intended to codify the existing law, and, since it contains nothing which conflicts with the rule established by the cases dealt with in this paragraph, it follows that the tests therein discussed are applicable to cases arising either before or after the statute. In the present instance, it cannot be claimed for a minute that any business man, of ordinary intelligence and capacity, in Fehr’s position, would have failed to suspect Stein and the paper he was endeavoring to sell, when the latter offered him this $10,000 note (acknowledged at the time as belonging to his corporation) under the circumstances of this case, which, no matter how liberally regarded, cannot properly be said to show a usual mercantile transaction or one that would be apt to occur “in the regular course of business”; on the contrary, the deal by which Fehr took title to the note in suit was, on its face, so out of the ordinary course of business and so impregnated with-commercial bad faith as, in the absence of explanation, to deprive plaintiff of the rights belonging to a holder in due course, and we are brought to this conclusion by applying either the old common law tests or the language used in the act of assembly. The question of the good faith of a holder of commercial paper is generally one of fact for the jury, but where the evidence is undisputed and conclusive, it is the court’s duty to decide the point as a matter of law and instruct the jury accordingly; Howard N. Bank v. Wilson, 96 Vt. 438, 453, 120 Atl. 889, 894. Here, the conclusion that plaintiff did not acquire title to the note in suit under such circumstances of good faith as to constitute him a holder in due course, is based on evi dence given by Fehr, himself, upon whom rested the burden of proving that he was a holder in due course; not only did he fail to do this, but from his own testimony it was affirmatively shown that in law he could not occupy that favored position. This being the case, since the maker’s defense was good, and conclusive against anyone but a holder in due course, defendant was entitled to have a verdict directed in his favor. The proofs that made a conclusive case for defendant consisted of the record in the equity suit (showing, as against plaintiff, since he was a party to that proceeding, an irrefutable adjudication of the fraud by which the note had been procured from defendant) and uncontradicted testimony, from plaintiff himself, which proved the illicit negotiation of the paper to him; hence there was no issue to go to the jury, — simply a question of law for the court as to the legal effect of Stein’s and the plaintiff’s illegal and improper conduct. See Schmitt v. Potter T. & T. Co., 61 Pa. Superior Ct. 301, 307, 308, 311, hereinbefore referred to, where the holder of commercial paper, negotiated to him by an officer of a corporation in payment of the latter’s personal indebtedness, was denied the rights of a holder in due course, binding instructions having been given against him at trial, and where many of the points now before us are discussed in the opinion of the appellate court, affirming a judgment entered on a verdict in accordance with such instructions. In the case at bar, as in the Schmitt Case, the facts and the law called for binding instructions against the holder of the paper in suit, and the court below erred when it refused defendant’s request to that effect. The first assignment is sustained and judgment is entered in favor of defendant n. o. v.

The opinion of the Court was delivered by Tilghman, C. J. Frederick Hillegas, the plaintiff below, (who is defendant in error,) claimed the land in dispute under a warrant and survey to Thomas Holt, who conveyed to George Armstrong, who conveyed to William, Henry, who conveyed to the Bank of North America, who conveyed to James Ross, who conveyed to the Plaintiff. On, the trial of the cause, several exceptions were taken to the opinion of the Court on points of evidence, on which exceptions this Court is now to decide. 1. The first exception was to a paper purporting to be the original survey, not returned to the office of the surveyor general, but found among the papers of George Woods, deceased, formerly deputy surveyor of Bedford county, in the hands of Henry Woods one of his executors. It was proved, that the body of the writing, and the indorsement on this paper, were of the hand-writing- of several persons deceased, who had been deputy surveyors or assistants to- the deputy surveyor of Bedford county; and upon this evidence, the Court permitted it to go to the jury. The Court have been very liberal in admitting evidence of this kind ; so much so indeed, that I do not see how, without inconsistency, this paper could have been excluded. It ought, to be sure, after the death of George Woods, to have been delivered by his executors, to his successor in office. But it is very common for deputy surveyors to intermix their private, with their official papers, and it would be unjust that a third person, who was obliged to have his survey made by the officer, should suffer by this kind of negligence. The material point to be ascertained, was, whether the survey was an official act; of that, the jury were to judge. The paper in question was not conclusive evidence of a survey, but I think the preliminary evidence justified the Court in permitting it to be laid before the jury.' 2. The second objection was, to the admission of an exemplification of a deed from William Henry and wife, to the President, Directors, and Company of the Bank of North America, certified by the recorder of deeds for the county of Huntingdon. This deed contained a conveyance of lands, lying in the county of Huntingdon, and also of the lands now in dispute, which lie in the county of -Bedford. Evidence of this kind has been admitted, by the Judges of this Court, at Nisi Prius. and was determined to be. admissible, by the Circuit Court of the United States for the district of Pennsylvania. in the case of' M'Keen v. Delancy's Lessee, which was carried up to the Supreme Court of the United States, and affirmed on a writ of error. 5 Cranch, 22. Indeed I consider this exception as having been abandoned, and very properly, by the plaintiff in error, on the second argument of this cause. The deed was legally recorded in Huntingdon county, because it contained a conveyance of land in that county ; and being legally recorded, its whole contents became legal evidence in every part of the State. But although legal evidence, it does not follow that it would be preferred to a subsequent deed made to a purchaser without notice, for those lands which lie in Bedford county, which should be recorded in Bedford county. That is quite a different question, and I mention it, lest an improper inference should be drawn from the point now decided. 3. The- third exception was, to the admission of the deed from the Bank of North America to James Ross, to which there were two objections, first, that there was no evidence of the seal of the corporation ; and second, that the corporation was incapable of receiving a conveyance of land, otherwise than by mortgage, and therefore had no estate which could be conveyed. The first exception was. good. A corporation is an imaginary being ; a creature of law, which cannot act otherwise than as prescribed by law. Its deeds are authenticated by its common seal, but that seal must be proved. It is not one of those public matters, of which individuals are bound to take notice. I do not mean, that the affixing of the seal must be proved by a witness who was present, and saw it done. But the seal itself, that is the impression, must be proved by some person who knows the device, motto, &c. No evidence of that kind was offered, and therefore the deed ought not to have been read to the jury. In support of this opinion, I refer to the case of Jackson v. Pratt, decided by the. Supreme Court of New York, ÍO Johns. 381, and Peake’s Law of Evidence, 48, note, and 72. But the great point's in this cause are, the capacity of batik to take the land conveyed by William Henry’s deed, and afterwards to convey the same to James Ross. There is no*1 doubt that a corporation must be governed by the charter, from which it derives its existence. It can do no act nor take any estate contrary to its charter. If therefore It can be shewn, that the Bank of North America, is forbidden by its charter, either to take, or to convey, the land contained in William Henry’s deed, the plaintiff’s action cannot.be supported. By the 3d section of the Act of Incorporation, (17th of March, 1787, '2 S'm. L. 399,) the bank is made capable “ to have, hold, purchasé, receive, possess, enjoy, and retain, lands, rents, tenements, goods, chattels, and effects of whatsoever kind, nature or quality, to .the amount of two millions of dollars and no more, and also to sell, grant, &c. the same lands, &c. Provided nevertheless, that such lands and tenements, which the said corporation are hereby enabled to purchase and hold, shall only extend to such lot and lots of ground, and convenient buildings, and improvements thereon erected or to be erected, which they may find necessary and proper for carrying on the business of the said bank, and shall, actually occupy for that purpose, and'to such lands and tenements which are or may be bona fide mortgaged to them as securities for their debts’’ It is remarkable, that, with regard'to the holding of lands, the charter of this bank is more restricted than that of any other bank in the State, for all the others are enabled to hold, not only the lands which have been bona fide mortgaged to them by way of security for debts, but also those, “ which may be conveyed to them in satisfaction of debts previously contracted in the course of their business, or purchased at sales upon judgments which shall have been obtained for such debts.” This difference of restriction, must have arisen from the extreme jealousy of monied corporations which pervaded the mind of the Legislature when the Bank of North America was incorporated. It never could have been intended to place that, bank on a worse footing than others, for it was the only one, which risked its capital on a field altogether untried in America, and which had the merit of rendering essential service to the United States, during the war of the revolution. It would be improper therefore, to carry the restriction, by construction., farther than the words of the law plainly import. The restriction is, that the bánk shall not purchase and hold, Pur- and holding, are very different things, and -the consequences of each are very different. If the words had been, that the bank should neither purchase nor hold, then it could have done neither one nor the other. But although purchasing and holding, might have been thought dangerous, because of the power which it would have given the bank to bring too much land into mortmain, yet to purchase, subject to the statutes of mortmain, which authorised the Commonwealth to appropriate the land to its own use, could be attended with no danger. This construction would satisfy the jealous policy of the Legislature, preserve the community from the danger of .too great a mass of real property held in mortmain, and at the. same time put it in the power of the Commonwealth to act towards the bank, as justice might seem- to require’. This is a consideration of no small importance; for when the directors of the bank accepted from William Henry, a conveyance of his land at a fair price, in payment of a debt bona fide due, it would be bard to presume, that they knew they were acting in violation of their charter. But granting that the restriction in the charter, did not extend to the simple act of purchasing, it may be asked, whence did the corporation derive the right to purchase, and what would be the situation of land purchased, without a capacity of holding. The answer is, that a corporation, has,from its nature, a right to purchase lands, though the charter contains no licence to that purpose. And in this respect the statutes of mortmain have not altered the law, except in case of superstitious uses. But since those statutes, it is necessary, in order to enable a corporation to retain lands which it has purchased, to have a license for that purpose ; otherwise, in England, the next lord of the fee may enter within a year after the alienation, and if he do' not, then the next immediate lord, from time to time, has half a year to enter, and for default of all the mesne lords, the king takes the land so aliened, for ever. That this is the law appears from the following authorities. 2 Black. Com. 268, 269. Co. lit. 2. 6 Fin. Ab. 265. (G, pi. 2.) id. 266.pi. 8. Jenk. Cent. 270. 3 Com. Dig. 399. (F. 10.) id. 401. (F. 15.) 1 Rol. Ab. 513. 1. 35. 10 Co. 30. But in Pennsylvania, where there are no mesne lords, the right would accrue immediately to the Commonwealth. It has been objected however, that according to the report of the Judges of this Court, made on the 14th December, 1808, in pursuance of an Act of Assembly requiring them to make a report of the English statutes which are in force in the Commonwealth, &c., it appears, that all conveyances of land to a corporation, without-licence, are absolutely void. I will consider this objection. The Judges-reported the following statute's of mortmain, “7 Ed. I. (Stat. 2.) 13 Ed. I. ch. 32. 15 Rich. II. ch. 5, and 23 Hen. VIII. ch. 10; which are in part inapplicable to this country, and in part applicable, and in force. They are so far in force, that all conveyances by deed or will, of lands, tenements, or hereditaments, made to a body corporate, are void, unless sanctioned by charter or Act of Assembly. So also are all such conveyances void, made either to an individual', or to any number of-persons associated, but not incorporated, if the’ said conveyances are for uses or purposes of a superstitious nature, and not calculated to promote objects of charity or utility.” I have quoted the words of the report, and it is evident that the Judges could have no intent, nor had they power to make any addition to the statutes, or in any manner to alter them. Now by reference to the statutes, it will appear,that in all of them, except the 23 Hen. VIII. ch. 10; the conveyance is not absolutely void, but the estate passes to the corporation, subject as before mentioned, to the right of the several mesne lords, and in their default, of the king, to enter and hold in fee. But by the statute of 23 Hen. VIII. ch. 10, (which has been determined to extend to superstitious uses only, see 2 Black. Com. 273. 1 Co. Rep. 24,) uses and trusts, made and contrived in favour of religious persons, or any bodies corporate, for more than twenty years, shall be utterly void. Now tfye.meaning of the report of the Judges is, that, according to the statute cited by them, conveyances to superstitious uses,-are absolutely void, and conveyances to corporations, to uses not superstitious, are so far void, that those corporations shall have no capacity to hold the estates for their own benefit, but subject to the right of the Commonwealth, who may appropriate them to its own use at pleasure; in other words, that such conveyances have no validity for the pur» pose of enabling the corporation to hold in mortmain. But to support the plaintiff’s title, it must be shewn that the corporation had power, not only to take by purchase, but to alien. In this respect I consider a corporation in the situation of an alien, who has power to take, but not to hold. That an alien may take by purchase, (though not by descent,) has been settled from the earliest times. It is so laid down in Co. Lit. 2, and I believe has never been questioned. Neither has it been questioned, that the land is subject to forfeiture, and may be seised for the king, after office found. But it has been questioned, what is the right of the alien before office found for the king. Without reference to English cases, which leave the matter in doubt, we have the highest authority in our own country for saying, that until some Act done by the Commonwealth according to its own laws, to vest the estate in itself, it remains in the alien, may convey it to a purchaser, but he can convey no estate which is not defeasible.by the Commonwealth. This principle was asserted by Judge Story, who delivered the opinion of the Supreme Court of the United States, in the case of Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 603 ; and this was the opinion of the Supreme Court of Massachusetts, in the case of Sheafe v. O'Neil, 1 Mass. Rep. 256, cited by Judge Story. It is'reasonable in theory, and can have no ill effect in practice, that he who has a defeasible estate, may convey a defeasible estate. Provided the right of the Commonwealth to defeat the estate granted by the alien remains entire, it is immaterial who holds the land until that right be prosecuted. Supposing then, that the cases of the alien, and the corporation be similar, (and I see not how they can be distinguished,) it follows that the deed, from the Bank of North America to James Ross, conveyed a fee simpie, defeasible by the Commonwealth. The counsel for the plaintiff did indeed contend, that this deed might be considered as a mortgage, though on its face it appears to be an absolute conveyance; But this construction cannot be supported. In order to carry the intent of the grantor into effect, a deed intended to operate as one species of conveyance, may be construed to operate as another, provided it contain words sufficient. But it cannot be construed so as to'destroy the intent of the parties, as would be the case by holding this deed to be a mortgage ; for it was the clear intent of both parties to make an absolute sale, and not a mortgage. When William Henry conveyed the lands mentioned in his deed, it was his intent, that in consideration thereof, the debt due from him to the bank should be extinguished, and the bank agreed to accept the conveyance in satisfaction of the debt. But supposing it to be a mortgage, the debt would be extinguished, and Henry would still remain responsible. I am clearly of opinion therefore, that it was not a mortgage, but an absolute conveyance. 4. The fourth and last exception in this cause was, to the deed from James Ross by John Anderson his attorney, to the plaintiff. The objection was, that the power of attorney was not produced, nor good reason shewn for not producing it. The Court heard evidence on that point, and being of opinion ¿that there was sufficient proof of the existence of the power, and of its loss, suffered its contents to be proved by parol evidence. In matters of this kind, where the Court below goes into a preliminary inquiry before it decides upon the admissibility of written evidence, it must be a very strong case which would induce this Court to decide that there was error. Such a case is not presented .on this record, and therefore without criticising the parol evidence, I will only say, that the fourth exception does not appear to me to be supported. Upon the whole, I am of opinion, that there was error, in admitting the deed from the Bank of North America to James Ross without proof of the corporate seal, and that there is no other error in the record. The judgment is therefore to be reversed, and a venire facias de novo awarded. J udgment reversed, and a venire facias de novo awarded.

Opinion by Judge Kramer, This is an appeal from an adjudication of the Unemployment Compensation Board of Review (Board) dated December 28, 1971, which disallowed an appeal from the Order of a Referee of the Board. The Referee had affirmed the decision of the Bureau of Employment Security which had disapproved the claim of Marie A. Loder (Loder) for benefits under the Pennsylvania Unemployment Compensation Law, Act of December 5, 1936, 2nd Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §751 et seq. Loder had been employed by the Fernwood Markets, Inc., in Upper Darby, Pennsylvania, as a cashier, for approximately four and one-half years, and was the head cashier at the time of her separation from employment on August 20, 1971. On this termination date, at about 10:00 a.m., Loder Avas requested by the personnel director of her employer to attend a meeting at 4:00 p.m., on that date, to discuss “her attitude” toward her job. The meeting was arranged during Loder’s Avork hours. The very brief record made before the Referee, at which hearing Loder was not represented by counsel, is not clear on what transpired at about 2:00 p.m. on the date in question. Loder testified that she would not be able to attend the meeting because she had a headache, and an “employer representative” (not otherwise identified in the record) testified that Loder informed him, “I Añil have a headache at 4:00 p.m., and I won’t be able to attend the meeting.” In any event, Loder did not attend the meeting. Loder was adñsed that if she did not attend the meeting, she could consider her employment terminated. The record is completely devoid of any eAddence concerning employment rules or terms of a contract of employment with Loder, indiñdually or through the labor union of Avhich she was a member. The Referee made the folloAñng findings of fact: “1. The claimant was last employed by Fernwood Markets, 1742 South State Road, Upper Darby, Pa. 19082, for approximately four and a half years as a cashier at the rate of $3.95 per hour. Her last day of work was August 20, 1971. “2. On the claimant’s last day of work she was requested to attend a meeting on company time regarding her attitude and behavior. “3. The claimant informed her employer that she would not attend the meeting. “4. As a result of the claimant’s refusal to attend the meeting she was discharged.” The Referee concluded that Loder’s actions constituted “willful misconduct”, thereby disqualifying her from receiving benefits under the provisions of Section 402(e), of the Unemployment Compensation Law, 43 P.S. 802(e). This Section provides in pertinent part: “An employe shall be ineligible for compensation for any week— “(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is ‘employment’ as defined in this act. . . .” There can be no question that the findings of the Board or its Referee are to be considered conclusive if supported by the evidence and in the absence of fraud. See Section 510 of the Unemployment Compensation Law, 43 P.S. §830. Also see Progress Manufacturing Company, Inc. v. Unemployment Compensation Board of Review, 406 Pa. 163, 176 A. 2d 632 (1962). As we have said in prior cases, the credibility of the witnesses, the weight of their testimony and the reasonable inferences to be drawn from such evidence are for the Board’s determination. See Philadelphia Coke Division, Eastern Associated Coal Corporation v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 37, 293 A. 2d 129 (1972) ; Cleaver v. Unemployment Compensation Board of Review, 5 Pa. Commonwealth Ct. 255, 290 A. 2d 279 (1972). In keeping with our scope of review', we state that all of the findings of fact of the Referee which were in effect adopted and affirmed by the Board of Review are supported by the evidence in the record. The problem arises, however, that the findings of fact made by the Referee and the Board, as set forth hereinbefore, do not support the legal conclusions and the final adjudication. As was stated in the case of Quinn Unemployment Compensation Case, 201 Pa. Superior Ct. 152, 191 A. 2d 714 (1963): “The conclusion of the board drawn from those facts, to wit: that the claimant was guilty of willful misconduct, was, in our opinion, primarily a legal conclusion and one which we are in just as good a position to draw as the board.” 201 Pa. Superior Ct. at 157, 191 A. 2d at 716. Unfortunately, the Legislature has not defined the phrase “willful misconduct”. The appellate courts of this Commonwealth have endeavored to establish the standards to be applied in willful misconduct cases. As a general principle in order to deny unemployment compensation benefits to an employee, his or her action must involve a wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of Ms employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer. See Detterer Unemployment Compensation Case, 168 Pa. Superior Ct. 291, 77 A. 2d 886 (1951). Furthermore, the single instance of an employee refusing to carry out the instructions of an employer may be of such a serious nature that it could be classified as willful misconduct, but a single dereliction of a minor, or casual, or insigmficant nature will not constitute willful misconduct. See Quinn Unemployment Compensation Case, supra; Morgan v. Unemployment Compensation Board of Review, 174 Pa. Superior Ct. 59, 98 A. 2d 405 (1953). We agree with counsel for the Board of Review when he says that if the conduct clearly discloses breaches of duties and obligations which are inimical to the employer’s best interest, such acts on the part of the employee may constitute willful misconduct. However, we cannot accept the Board’s characterization of the acts of Loder in this case to be hostile to her employer’s best interests. The Referee and the Board in this case did not make any finding that Loder had refused to attend any meeting or meetings other than the one described, in violation of her duties, contractual or otherwise, to her employer. The single incident properly found by the Referee is not of sufficient nature that it could be classified as inimical to her employer’s best interest. We have carefully reviewed the entire record in this case, and we can come to no other conclusion than that the findings of the Referee and the Board do not in any way support the conclusion that Loder was guilty of willful misconduct which should disqualify her from receiving benefits under the Unemployment Compensation Law. The Order of the Board is herein-reversed.

The opinion of the Court was delivered by Sergeant, J. 1st and 2d errors. The court, we think, were _ right in rejecting the parol evidence of the justice to prove what the plaintiff’s cause of action was before him. The docket of the proceedings before the justice showed explicitly that the action was brought to recover a deficiency in a sale for account of a former purchaser. This was the best evidence; and parol evidence was not admissible to contradict or vary it. So also the court was right in refusing the evidence of the justice to show whether his docket set forth precisely the cause of action; for that was to be judged of by the docket itself, and not by parol evidence. Also for the same reason whether the cause of action was or was not for the costs of the second sale. The case was before the court on appeal, and the plaintiff had a right to embrace in his claim whatever was within the scope of the demand on the justice’s docket. 3. The third error objects to the inference by the court from the evidence, that an arrangement was made between the parties to meet next morning at the house of E. Garrigues, for the purpose of receiving the money on one side, and possession of the goods on the other. It is an inference, we think, fairly deducible from the evidence, as it is difficult to understand what other settlement could take place, considering the terms of sale were for cash, and that the defendant was not then prepared to pay it, but engaged to meet next morning and settle. 4, 5. Nor is there anything in the fourth and fifth errors, because Rapp’s testimony leads to the conclusion, that at the settlement next morning, the plaintiff was to deliver the goods on the defendant’s paying the cash. It is ordinarily the business of the purchaser at auction for cash, to pay the money and take away the goods; and the conditions of sale plainly imply that here; for by them the purchaser is to pay the cash before removal of the goods. If he does not show that he offered to do this, or that the plaintiff prevented it, it seems to me the purchaser is in default. If the plaintiff' had the goods ready next morning, and the defendant failed to come and pay for them and take them away (and there is no evidence that he did), the defendant was in default, and without more is liable. 6. The effect of the defendant’s offer to comply before refusal or neglect by him, is an abstract point not applicable to this case. There was no proof of the defendant’s calling to pay the purchase money on the morning after the sale, according to his agreement, and therefore he was from that time in default. Whether he redeemed himself by the subsequent tender on the 5th of November, depends on another question, whether he then tendered enough to meet the claim of the plaintiff. 7. The averments in this error are in my opinion not supported by the facts. There is evidence of a refusal, or what is tantamount, a neglect to pay the cash, according to the terms of sale, either on the day of sale, or the next morning when the defendant was to meet and settle. As to the subsequent tender on the 5th of November, it appears to have been of the amount of the sale only; whereas, it ought to have also embraced the charges the plaintiff had been at in removing and taking care of the goods. The property could not be preserved by the plaintiff without some expense, as it partly consisted of pigs, and they must be fed. If the defendant was in default, by not paying according to the conditions of sale, and in consequence thereof, the plaintiff was obliged to incur expense in taking care of the articles or removing them to a secure and proper place, the defendant is fairly chargeable with this expense. The tender on the 5th of November, therefore, was not sufficient, and the plaintiff was not bound to accept it, but had a right to go on to a re-sale. The goods, it appears, sold for more than they brought at the first. If that surplus was sufficient to cover the costs and charges the plaintiff had been at, the defendant would not be liable; whether it did, was a question of fact for the jury. 8. In this I perceive no error. 9, 10. The ninth I pass over, and for the present the tenth. 11. The costs and expenses of the plaintiff in taking care of and supporting the property, were a proper subject of consideration in estimating the damages, as I have before said. 12, 13. It is clear the defendant could not set-off in this action to recover damages for his failure to comply with his bid, a claim against the plaintiff for the amount of rent due to him as landlord, out of the proceeds of sale. These claims are in different rights; and besides, a constable cannot move in any sphere but that prescribed by the law, whose agent he is, and from which alone his authority is derived. In suing to recover the amount of the defendant’s bid, he represents in some measure the plaintiff on whose execution he sold; and it is from his official station alone, that the relations between him and the defendant have arisen, whatever may be the name in which he sues. In a suit by the landlord against him, he could not be allowed to set-off the claim he had, for failing to comply with the bid, nor can the reverse be done. Public officers, on grounds of policy, and for the protection of suitors, are not allowed to mingle together the rights and claims in different proceedings at law, either by their own arrangements or by set-off. In Irwin v. Workman, (3 Watts 362), it was held that a sheriff, in an action for money in his hands, cannot set-off a note given fjp the plaintiff to his attorney in the execution, and assigned by the attorney to the sheriff. So in Miles v. Richwine, (2 Rawle 199), it is said, two constables cannot agree to set-off executions in their hands against each other, inasmuch as such an arrangement would substitute the officer for the defendant; and in Minich v. Cozier, (2 Rawle 113), it is said to be agreed that a defendant in a suit by administrators, is not permitted to set-off a debt due to himself from one of the administrators, altogether unconnected with the estate in right of which the suit is brought. The specific answers of the court involve no other point except the second, which is' the fourteenth error. 14. This is unsupported. The contract was complete when the defendant bid off the articles at auction, and became the purchaser according to the conditions of sale. His not performing it by selecting the pigs was his own default. He might have done it at the time of the sale, if he had prepared the cash, or the next morning when he agreed to meet and settle. He cannot allege his own neglect, as a reason why he should be exempted from responsibility. The tenth and sixteenth errors remain. 10. On this subject the court seems to do no more than lay down the rule in Girard v. Taggert, (5 Serg. <§• Rawle 19), that a re-sale is the usual mode of ascertaining the value, but the jury are not bound by this mode of estimation if they can find another more agreeable to truth; a principle which has been recognised in subsequent cases. Though the language used by the court may at first sight appear dubious, yet, on examination, this, we think, is its fair interpretation. 16. As to this, we think the court below were correct. The point has been decided in Mills v. Hunt, (17 Wend. 336), in which the English cases were reviewed; and it was decided, that when the purchase is made at an auction sale of goods, at one and the same time, and from the same vendor, although the articles purchased are numerous, and are struck off separately at separate and distinct prices, the whole constitutes but one entire contract; and the prices of the different articles fixed on are but part and parcel of it. In the decision and reasoning of the Supreme Court of New York in this case, we concur, so far as respects the sales of personal property at auction; and it fully supports the opinion of the court below. Judgment affirmed;

Opinion by Mr. Justice Mitchell, At the close of the plaintiff’s testimony defendant moved for a nonsuit on three grounds, 1, there was no evidence of the relation of attorney and client, 2, there was no evidence of negligence, fraud or collusion, and 3, there was no evidence of any damages sustained by the plaintiff. The court entered a non-suit, and in refusing to take it off dwelt principally upon the failure to establish the relation of attorney and client between the parties, but we must of course assume that all three of the grounds were considered. The payment of a fee is the most usual and weighty item of evidence to establish the relationship of client and attorney, but it is by no means indispensable. The essential feature of the professional relation is the fact of employment to do something in the client’s behalf. There must be an agreement, express or implied, for compensation, but whether payment is made in part or in whole by retainer in advance is not material. Nor is it even indispensable that the compensation should be assumed by the client. Ordinarily it is so from the nature of the employment which in the vast majority of cases involves the guarding or enforcement of the client’s interest against an adverse one, and is therefore exclusive. But even adverse interests if to be amicably adjusted may be represented by the same counsel, though the cases in which this can be done are exceptional and never entirely free from danger of conflicting duties. In matters of the present kind it is not uncommon, in many places, including some at least of the counties of this state, for the same counsel to represent both borrower and lender, upon mortgage or similar securitjr, although the former only is expected to pay the fees. In Scholes v. Brook, 63 Law Times, N. S. 837, plaintiff had invested money on mortgage relying on the opinion of “ valuers,” and the property proving inadequate she sued the valuers for negligence. Romee, J., said: “No doubt in this case, as is common, the costs of Brook and Dansfield’s valuation were intended to be paid by the mortgagor, just as the costs of the solicitors employed by the mortgagee were expected to be paid by the mortgagor in the sense that they would be paid out of the money advanced; but that does not determine the relation between the parties. I am satisfied on the evidence that, as between Brook and Dansfield on the one hand and the plaintiff on the other, it was understood by both that Brook and Dansfield were advising the plaintiff, and' that the plaintiff was going to act in her capacity as mortgagee, on the footing and faith of their valuation and of their being her ad-visors. ... It was contemplated, according to what, as I said before, was a usual custom, that the costs' of the valuation, if the proposed loan was effected, should be borne ultimately by the mortgagor; but to my mind it is clear that Brook and Dansfield were asked to make the valuation, to their knowledge as valuers, on behalf of the mortgagee, not the mortgagor.” On appeal this was affirmed by the Lords Justices, 64 Law Timés, N. S. 674. So in Wittenbrock v. Parker, 102 Cal. 93, the custom was recognized, it being said, “ The burden cast upon the mortgagor of paying for the services of the attorney selected by Bithell (the mortgagee) to guard his interests, was simply a condition of the loan, and did not alter the status of such attorney or diminish the duty or responsibility which he owed to his employer.” In the present case it is undeniable that the defendant Avas acting for Roberts the borrower, from whom he received his compensation, and to whom alone, upon the manifest understanding of all parties he was to look for it. But that fact does not of itself prevent the relation of attorney and client between plaintiff and defendant, if such was the mutual understanding. There was no evidence of custom in that respect, and the court below might not be able to say as matter of law, certainly we cannot, that such was in fact the custom. But outside of the existence of any general rule there was evidence from Avhich the jury might have inferred that such was the understanding of these parties in this particular case. The defendant unquestionably acted to some extent for and in behalf of the plaintiff. After the money was paid over he kept the mortgage which was then the property of plaintiff, and he put it on record. In so doing he was clearly acting for plaintiff, and if he had negligently delayed recording until a subsequent judgment or other incumbrance slipped in ahead of it, there can be no question that he would have been liable for the negligent performance even of a duty voluntarily assumed. But there was evidence that he did more for plaintiff than put the mortgage on record. Lawall testified that lie told defendant “ to search the title and the records in reference to liens ” and that “ he said he Avould,” and more to the same effect. The presumption is that this was done in behalf of plaintiff. To Roberts, the borrower, the priority of other incumbrances was of no concern with regard to this loan, except as bearing on plaintiff’s willingness to advance the money, but to plaintiff it was a material fact as part of the inducement or consideration for risking the investment. We are of opinion therefore that there was sufficient evidence to submit to the jury on the existence of the relation of attorney and client in the case. But the nonsuit was also erroneous for another reason. Independent of the relation of attorney and client, there was evidence, already noticed, that defendant undertook certain duties for the plaintiff. The learned judge rightly says that collusion or fraud could not be found on the evidence in the case, but this does not exclude liability arising from negligence. The principle settled in Coggs v. Bernard, 1 Smith’s Lead. Cases, that one who undertakes to do, even without reward, is responsible for misfeasance, though not for nonfeasance, has been generally adopted. If therefore defendant, knowing that plaintiff was relying on Mm in his professional capacity to see that her mortgage was the first lien, although Roberts was to pay the fees, undertook to perform that duty, he was bound to do it with ordinary and reasonable skill and care in his profession, and would be liable for negligence in that respect. The argument for the third ground of nonsuit, that it has not yet been shown that plaintiff has suffered any damage, would not be without force if the question were new, inasmuch as she took the mortgage as security only and the mortgagor when called upon may pay the debt, or the mortgage being sued out the property may bring enough to cover it. But the law is settled the other way. Plaintiff is entitled to the security she contracted for, and may recover the difference in value between that and what she actually got. The cause of action is the breach of duty, not the damages, which are only an incident. Miller v. Wilson, 24 Pa. 114, was very similar to the present case. The plaintiff had judgments which were a lien on certain real estate, and agreed with a purchaser of the latter to accept his bond secured by mortgage on the land. Defendant was employed as attorney to carry out the agreement, and in that capacity satisfied plaintiff’s judgments, but neglected to have the mortgage recorded until other judgments were entered ahead of it. In meeting the point now made, Chief Justice Black said, “ The argument is that plaintiff has not as yet suffered any actual loss from the defendant’s violation of duty; and that she can recover from Miller (defendant) only in case Carson (mortgagor) make default; because the mortgage being but a security for the bond there is nothing due on the former until the condition of the latter is broken. But we hold it for clear law that defendant .... subjected himself to an immedi ate action, in -which the plaintiff may recover compensation for all she has lost, and all she is likely to lose through his misconduct.” The cases have usually arisen on the statute of limitations, and it has been uniformly held that the right of action is complete so that the statute begins to run from the breach, although the damage may not be known or may not in fact occur until afterwards. In Moore v. Juvenal, 92 Pa. 484, it is said by the present chief justice, “ Where the declaration alleges a breach of duty and a special consequential damage, the breach of duty and not the consequential damage is the cause of action, and the statute runs from the date of the former, and not from the time the special damage is revealed or becomes definite.” See also Lilly v. Boyd, 72 Ga. 83, citing our own case of Rhines v. Evans, 66 Pa. 192. On the question of damages the plaintiff’s case was weak. The statement avers that the property is “ not worth more than twelve hundred dollars.” The witness Yeager thought it would be “ cheap at ten or twelve hundred dollars,” and Dr. Eegley, the owner of the first and second liens testified that the property had “ rather increased during the last two years.” That is about all there is on the subject. But although it is meager we cannot say that it is not enough to go to the jury. If they should find the security worthless, and the court in view of the fact that the verdict must necessarily be based largely on opinion on that point, should have any doubt on the subject, its powers are sufficient to prevent injustice to the defendant. In Green v. Dixon, 1 Jurist, 137, a similar action against an attorney for taking an insufficient security, Lord Abinger having indicated his opinion that plaintiff had made out a cause of action, a verdict was rendered for plaintiff for the amount advanced, he undertaking to convey the security taken to any one appointed by the defendant. The equity powers of courts even in suits at law in Pennsylvania are ample to protect the defendant in the same or equivalent manner. The offer contained in the third assignment was clearly incompetent. There was no evidence, as the learned judge said, of collusion or fraud, and nothing to make the declarations of Roberts evidence against defendant. The fourth assignment however must be sustained. The authority of Edgar Lawall from Ms sister to pay over the money was a fact to which he could testify. Though agency cannot be proved by declarations of the alleged agent yet he is a competent witness to prove it, and his testimony cannot be restricted to the mere words used by the principal, but is admissible generally on the whole subject. Judgment reversed and procedendo awarded.

Per Curiam, The opinion of the learned judge of the court below, sustaining the defendant’s demurrer, is so clear and satisfactory, that we affirm the judgment for the reasons given by him. Judgment affirmed.

Opinion by Mr. Chief Justice Jones, A petition for the dissolution of the Women’s Homoeopathic Hospital of Philadelphia was filed in the Court of Common Pleas No. 4 of Philadelphia County. As an incident of the corporation’s termination, the court would be called upon to distribute the hospital’s restricted charitable funds which represented an accumulation of some sixty separate gifts and aggregated approximately $350,000. The court appointed two co-masters for the purpose of marshalling the assets, taking testimony, hearing claims and recommending to the court an award cy pres of the hospital’s funds subject to such award. After extensive hearings, the masters concluded, and recommended accordingly, that the fund created by the will of William E. Sellers, aggregating, with accretions, approximately $29,000, should be awarded in equal shares to the Woman’s Hospital of Philadelphia and the Woman’s Medical College of Pennsylvania for the use of its hospital. The masters recommended that the remaining restricted funds be awarded in equal shares to Hahnemann Medical College and Hospital and Woman’s Medical College of Pennsylvania for the use of their respective hospitals. After argument on exceptions to the masters’ report by disappointed claimants of the fund, the court entered decrees effectuating the recommendations of the masters. From these decrees, Preston Maternity Hospital and St. Luke’s and Children’s Medical Center of Philadelphia have appealed. In reviewing a decree which gives effect to the cy pres doctrine, the scope of onr inquiry is limited to the question whether the court below misunderstood or misapplied the law or committed a manifest abuse of discretion : Kensington Hospital for Women Case, 358 Pa. 458, 462-463, 58 A. 2d 154; Glase Estate, 384 Pa. 118, 120, 119 A. 2d 294. In Commonwealth v. Pauline Home, 141 Pa. 537, 545-546, 21 A. 661, it was said with respect to a court’s exercise of its ey pres power, — “The matter was very much in the discretion of the court below, and we would not reverse, unless for a clear abuse of discretion.” Objective criteria for determining the operative presence of abused discretion are contained in the following quotation from Echon v. Pennsylvania Railroad Company, 365 Pa. 529, 534, 76 A. 2d 175: “ ‘An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is over-ridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” The record in this ease fails to disclose the slightest indication of partiality, prejudice, bias, or ill-will on the part of the court below, hence, our review is properly to be limited to determining whether the court below committed an error of law or exercised its broad discretion in the premises in an unreasonable manner. The parties to these appeals are in agreement as to the law of the case. Their only difference is with respect to the manner in which the court below administered it. In Wilkey’s Estate, 337 Pa. 129, 133, 10 A. 2d 425, Mr. Justice Stern, speaking for this court, characterized the following from the Restatement, Trusts, §399, as being “perhaps the best enunciation of the doctrine” of cy pres-. “If property is given in trust to he applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.” Long before the Restatement, the doctrine was expressed by this court to similar effect in City of Philadelphia v. Heirs of Stephen Girard, 45 Pa. 9, 27-28, as follows: “The rule of equity on this subject seems to be clear, that when a definite charity is created, the failure of the particular mode in which it is to be effectuated does not destroy the charity, for equity will substitute another mode, so that the substantial intention shall not depend on the insufficiency of the formal intention.” In this State, there is express statutory authority for applying the doctrine of cy pres. The presently applicable Act of April 26, 1855, P. L. 328, §10, as amended by the Act of May 23, 1895, P. L. 114, §1, 10 PS §13 (superseded by the Act of April 24, 1947, P. L. 100, §10, 20 PS §301.10) provides: “That no disposition of property heretofore or hereafter made for any religious, charitable, literary or scientific use, shall fail for want of a trustee, or by reason of the objects being indefinite, uncertain or ceasing . . . but it shall be the duty of any orphans’ court, or court having equity jurisdiction in the proper county, to supply a trustee, and by its decrees to carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity . . . In practical effect, application of the cy pres doctrine results in an approximation: City of Philadelphia v. Heirs of Stephen Girard, supra. In applying the doctrine the court exercises its discretion in such a manner as to award the fund to an eleemosynary institution whose services will most nearly approximate the intention of the donor: Connors v. Ahearn, 342 Pa. 5, 7, 19 A. 2d 388. As we said in Williams Estate, 353 Pa. 638, 643, 46 A. 2d 237, “. . . once the applicability of the cy pres doctrine is indicated, the problem forthwith becomes one of approximating the testator’s express direction as nearly as possible and without doing violence thereto.” Of course, no court may capriciously substitute its judgment for that of the settlor of the restricted fund and thereby effect a transfer of the gift to a charity not within his general donative scheme: see Kensington Hospital for Women Case, supra. In the instant case, the so-called Sellers Fund was, in a very real sense, self-determinative of its appropriate disposition. By his will, William E. Sellers bequeathed his residuary estate to the Fidelity-Philadelphia Trust Company in trust to pay over, under broad discretionary powers, either the income or the principal of the fund for the endowment- of rooms in hospitals “for the benefit and assistance of women or children primarily.” In carrying out this intent of the testator, the trust company allocated $60,000 of the residual corpus equally among three institutions which it selected as “hospitals dealing primarily with women and children.” The three hospitals so selected were the Woman’s Hospital of Philadelphia, the Woman’s Medical College of Pennsylvania and the Women’s Homoeopathic Hospital of Philadelphia. Of these three hospitals, the Woman’s Hospital and the Woman’s Medical College hospital are still functioning substantially in the same manner as they were when the trustee made its testamentarily authorized selection in 1938. The masters concluded that to divide the Sellers Fund equally between tbe two surviving of tbe three institutions originally selected by the trustee would most nearly carry out the intent of the donor. As already stated, the court effectuated the masters’ consonant recommendation by the decrees now under review in which respect the court acted properly. As to the remaining restricted funds of the dissolved institution, the masters concluded from the history of the Women’s Homeopathic Hospital of Philadelphia and the character of the services which it performed that the intention of the various donors to the institution’s funds was compounded of the following elements: (1) to aid a hospital commonly known as a “women’s hospital”, or (2) to aid a hospital commonly recognized as a “homoeopathic hospital”, or (3) both. The masters found that there is no hospital in the Philadelphia area which can be described as being both “a women’s hospital” and a “homoeopathic hospital”. They thereupon determined that the following hospitals might be regarded as “women’s hospitals”, namely, Preston Maternity Hospital, Woman’s Hospital of Philadelphia, and the hospital of Woman’s Medical College of Pennsylvania. The masters also determined that the following hospitals might be regarded as “homoeopathic” in origin and nature, namely, Hahnemann Medical College and Hospital and St. Luke’s and Children’s Medical Center. The masters, limiting their selection to a choice from among these institutions, concluded that the hospital of the Woman’s Medical College of Pennsylvania and Hahnemann Medical College and Hospital should share equally in the general restricted funds of the Women’s Homoeopathic Hospital. The reasons supporting the masters’ conclusions with respect to the award ay pres of the restricted funds (other than the Sellers bequest) are well stated in the opinion of Judge Guerin for the court below as fol lows: “The recommendation referred to was that, regardless of deviations that may have occurred in practice, under the spur of necessity, as the character and reputation of Women’s Homeopathic Hospital were, as suggested by its name, in equal proportions, that of a ‘women’s’ hospital and of a ‘homoeopathic’ hospital, and as it was impossible to find evidence to support a finding that the donors of the restricted funds were, on the whole, more animated by one characteristic of the Hospital than by the other, it would be equitable and carry out the intent of the donors best as a group, if one half of the restricted funds (other than the Sellers bequest) were awarded to a ‘women’s’ hospital and the other half to a ‘homoeopathic’ hospital. In these two categories, the Masters recommended designation of Woman’s Medical as the ‘women’s’ hospital and Hahnemann as the ‘homoeopathic’, but this recommendation was not based exclusively on their greater size and efficiency as compared with the other claimants in their respective groups. The finding with regard to each was made, to quote the Fourth Interim Report, ‘taking all elements into consideration,’ and because each is ‘best qualified by its character and services to carry out most nearly the intent of the donors,’ as a ‘women’s’ hospital and as a ‘homoeopathic’ hospital respectively.” The arguments of able counsel for the appellants have failed to persuade us that the court below erred as a matter of law or that it abused its discretion in approving and adopting the findings, conclusions and recommendations of the masters and that we could malee a more equitable distribution of the restricted charitable funds than what the masters recommended after their thorough and painstaking investigation and consideration of the problems involved. Decrees affirmed; costs to be borne by the restricted general funds for distribution.

The opinion of the court was delivered by Huston, J. This was a feigned issue directed by the court below, and subsequently modified by direction of the court, and, as it would seem, with the consent of all parties. It happens sometimes that in certain proceedings before a court, on motion, or otherwise, certain facts are contested, and either no full evidence, or contradictory evidence is given. It is usual in such cases to form an issue, in order to ascertain the facts, and this mode is directed in some cases by act of assembly. As the object is to ascertain some fact or facts, the issue is moulded so as to answer this purpose. The usual mode is to join issue on a wager, in which one party asserts a fact or facts to be in a certain way, and the other denies ; but it is not necessary that this form should be always pursued. In this case the form adopted would seem to have been intended, .and certainly is calculated to tty the facts and law both, and, in truth, did so, although this would seem to be more than was originally intended, and perhaps more than is usual in such cases. This has been objected to here, and much insisted on; but as no objection seems to have been made on this ground until after the verdict and judgment, I could not listen to it in this stage of the proceedings, except in a very peculiar case indeed; as where the object for which the issue was directed was lost sight of in forming the issue, or in the course of proceeding in it. The court who directed such issue, when it is tried before themselves, can and ought to mould it into the form calculated to answer the end proposed; and if it is found this has not been done, may arrest the proceedings and begin anew; but if no objection is made until the conclusion of the trial, neither that court nor this (for we take writs of error to proceedings in a feigned issue in this state) ought to reverse for what was not objected to, and, of course, not - decided by the court below, unless it is rendered, absolutely necessary to reach the whole of the case. Some facts and dates are necessary to understand this case. In the spring of 1823, Anthony Bulin and Henry C. Bosler, trading under the firm of Bosler & Co. found themselves greatly involved. After making some arrangements in favour of one or two persons, with which we have nothing to do, they, on the 23d April 1823, gave their bond, with a warrant, to confess judgment, and no stay of execution stipulated for, in the sum of 10,900 dollars, to the Bank of Pittsburgh; conditioned to pay the sum of 5455 dollars, with interest from this date, being the amount of the following eight notes ; the first seven being drawn by Bosler & Co., and the last by Henry C. Bosler, discounted in the Bank of Pittsburgh; all payable at sixty days from their date. 1st dated March 5th, 1823, indorsed by M. Neville, for 425 dollars; 2d dated March 5th, 1823, indorsed by George Poe, Jun., for 425 dollars; 3d dated March 19th, 1823, indorsed by J. W. Biddle & Co., for 900 dollars ; 4th dated April 7th, 1823, indorsed by James R. Butler, for 675 dollars ; 5th dated April 9th, 1823, indorsed by J. W. Biddle Co., for 500 dollars; 6th dated April 9th, 1823, indorsed by O. Orsmby, for 1100 dollars ; 7th dated April 23d, 1823, indorsed by J. W. Biddle & Co. and George Poe, Jun., for 1280 dollars ; 8th, and last, dated March 12th, 1823, indorsed by William Hill, for 150 dollars: and well and truly pay all notes given to renew said notes, and each and every of them ; and shall well and truly pay off said notes as required, and save harmless and indemnify said Bank of Pittsburgh, in every respect, with regard to said notes, without any fraud or further delay, then this obligation to be void, otherwise to be and remain in full force and virtue. This judgment was entered at the instance and on the repeated application of Mr Poe, who was the indorser on two of the notes, amounting to about 1700 dollars. Bosler and Bulin were indebted to the plaintiff) Stocker and others, on notes or bonds; for these Poe was attorney in fact and agent; this I shall not examine, as it is acknowledged he was attorney in fact and agent; and he had instituted suits on all these claims; and under our.act of assembly, they were referred to arbitrators, who were to meet on the 27th of May 1823, and whose award would operate as a lien on the lands of Bosler and Bulin, from the time it was filed, though no executions could be issued on such awards, until after twenty days from the time of filing them, and not then, if an appeal duly filed, until the appeal should be tried. It was well known, as the debts were due, that there could not and would not be any appeal, and that executions might issue in each of those cases, about the 16th or 17th of June. On the 10th of June 1823, after three other executions had issued at the suit of other persons, and the legality and regularity of which are not disputed, an execution issued on the judgment, first above mentioned, The Bank of Pittsburgh v. Bosler and Bulin; at whose immediate instance it issued, is disputed; but Mr Poe attended the sheriff, assisted in making the levy, wrote the schedule of every article levied on, urged the sale, got the advertisements printed, stating every article to be sold, and that they were to be sold on an execution issued by the Pittsburgh Bank against Bosler and Bulin. As soon as the reports of arbitrations had been made, twenty days had expired and no appeal, executions were issued at the suit of Stocker and other persons for whom Poe was agent, and these were levied on the same personal property, but subject to prior -levies. The personal property was sold, and produced about 6738 dollars, being enough to pay the three executions prior to that of the bank ; and part of the execution of the bank, but not- all of it; and leaving nothing for the subsequent executions of Stocker and the others. I must now go back a little space. Bosler and Bulin owed to the Bank of the United States nearly 100,000 dollars, for which, or great part of which, sundry persons, their indorsers, were also liable ; and to secure this debt, and save those indorsers, they, on the 26th of May 1823, the very day before Stocker and others expected a report of arbitrations and lien, conveyed a large amount of real estate to the bank. There is no allegation that the debt was not fairly due, and the property conveyed, was put at a fair, nay, at a high price. To induce the bank to accept of it, Bosler and Bulin covenanted to discharge all liens which bound it at the date of the deed ; and if he did discharge all prior liens, the bank were to release him and his indorsers from all claim, and take the property in full satisfaction of their demands. The deed to the bank was duly recorded. When Mr Poe first knew of this deed to the bank does not appear. The court of common pleas, which sat often in Pittsburgh by adjournment, was in session between the time of issuing the execution of the bank and the sale under that execution, but no application was made to the court on the subject. On the 4th of August 1823, Mr Baldwin as the counsel of Stocker, but employed by Poe, Stocker’s agent, took a rule to show cause why tins fi. fa. issued at the suit of the Pittsburgh Bank against Bosler and Bulin, and on which this property had been sold, should not be set aside; and another rule, it does not appear by whom, on the sheriff, to bring the money into court. Out of these proceedings arose the present feigned issue; much must have occurred between the August term 1823 and October 1826, when this issue was directed; and this matter was once before in this court. A very wide range has been taken in the discussion here, and in the court below. The fairness of the conduct of Bulin and Bosler in their deeds to the Bank of the United States and other persons, none of whom are before this court, have occupied much time. The only question to be decided here must be confined to this execution, for the judgment is not attacked, and, so far as we see, cannot be. This judgment, in the name of the Pittsburgh Bank, is anterior to the conveyance to the Bank of the United States, and unless its lien is lost for want of a scire facias, would take its amount out of the lands in preference to the Bank of the United States. The judgments of Stocker and others, of whom Poe is one at least, are subsequent to that conveyance, and unless their amount is recovered from this personal property, will not be paid. If they get the proceeds of this personal property, they throw the loss on the indorsers in the' Bank of Pittsburgh, or on the indorsers in the Bank of the United States; for Bosler and Bulin, it is conceded, can never pay any thing. Jlnthony Bulin, one of the firm of Bosler fy Co., was offered as a witness to prove that this execution of the bank was taken out with his assent, on the constant importunity of Mr Poe. The counsel of Stocker objected, and the witness was held to be interested—that he was bound to procure all liens on the property conveyed to be discharged ; if he did so he was to be released; and if those liens were not all cleared off, he and his indorsers were not discharged. It appears to us that the interest of Bulin is exactly equal either way. If this lien on the lands conveyed to the Bank of the United States is not extinguished by this levy and sale, Bulin will be liable to that bank for so much money as will extinguish it, and no more; the whole arrangement with that bank cannot be rescinded after it bas recorded its deed, neglected to fix the indorsers by protest and notice, or if they were so fixed, permitted more than six years to elapse, and the statute of limitations to operate ; it can then at most recover a judgment against Bulin, on his agreement to extinguish the lien, to the amount of such lien. If Stocker and others get this money, Bulin owes so much to the Bank of the United States; if the Pittsburgh Bank gets this money and their lien is extinguished, Bulin owes precisely the same sum to Stocker and others; he is then disinterested, or, what is the same thing, equally interested either way, and a competent witness. When this cause was in this .court before, (13 Serg. & Rawle 199) the chief justice, in delivering the opinion of the court, intended to put at rest most of the points now again brought before usi That opinion says, “the great objection to the plaintiff’s action, and indeed, it seems to me to be insuperable, is, that it calls in question the validity of an execution issued on a judgment, in a court of competent jurisdiction. The judgment on the bond of Bulin Co. to the Bank of Pittsburgh was regular—nothing about stay of' execution in the warrant of attorney on which it was issued. It was not void.; if erroneous or irregular, it might have been set aside on writ of error, or quashed on motion ; but without resorting to either of these methods the plaintiff has undertaken to invalidate it collaterally in this action ; this is against all principle. The execution, until quashed or reversed, is good.” The court there state that a judgment informally entered is good until reversed; and the same principle applies to an execution ; they state a judgment by fraud as an exception, but then the plea of per fraudem must be replied to it, and there is no question of fraud on this record, &c. Now it seems to me the same matter has been tried again in the same suit, on the same declaration, plea and issue, but with this difference, that this is a feigned issue, that a real one; and that the matter trying is in no respect different. No fact is stated to be ascertained by the issue; it is one in which law, equity and fact are blended; the matter and whole matter contested in the real suit is put in issue in this feigned issue, not even changing the form. The opinion of the court was asked on sundry points proposed, and error is assigned in not answering the second, and in erroneous or equivocal answers to the third and fourth. The second is not answered; it and the third may be taken together ; they both ask the opinion of the court as to the effect of Mr Poe’s conduct in procuring the execution, advertisement and sale on the judgment of the bank, and whether these acts do not preclude him from objecting to those acts, and setting all this aside. The answer in the charge is, that the “jury may infer from those facts that his urgency proceeded from a wish to secure the amount of his own personal debt, and of those judgments wherein he acted as agent for the plaintiffs.” Now this, instead of answering the point proposed, amounts only to telling the jury that two inferences may be drawn from the facts proved, but does not tell them what the law would be, if found as the defendants supposed; and is erroneous, if found as the judge supposes probable. Each supposition admits he did the acts stated by the defendants, and the judge says if he did them with a view to secure Stocker’s judgment, which he knew he would obtain on the 27th of May, and several others, among which was one of his own on the same day, that all may be right; that he may have used an execution on .the bank’s judgment to levy, advertise and sell Bosler & Co.’s property, and then turn round and say, “ All this was mere show; I will now set it all aside, because as things have turned out, it suits my interest to do so, and that court ought to decree accordingly.” The law is not so; the process of the court cannot be so made to be good if a man pleases, and bad if the same man-pleases, without regard to the interest of any and every body else; this I say, supposing the execution of the Bank of Pittsburgh was legally issued—Was it so ? It is now settled in this state that a mortgage or judgment may be given to secure a creditor, not only for a debt due, but for responsibilities which are contingent, nay, for future advances. Lisle v. Ducomb, 5 Binn. 585. This judgment to the Pittsburgh Bank was, as the judge rightly decided, to secure the bank, and also to secure the indorsers on the notes of Bosler & Co. then in bank, or which should be given to renew those notes as they fell due. There was no stipulation for any stay of execution. The fairness and validity of this judgment is not questioned. Bosler fy Co. are stated to have been in debt beyond all hope of extricating themselves. It was possible that they would on any day confess a judgment to some of their creditors, without stay of execution, and their large personal property might have been in an hour beyond the reach of this judgment. It was certain Bosler & Co. would never pay the notes in the Pittsburgh Bank; that the indorsers must pay them; they would all fall due in June. It was certain that Stocker and others would take executions on or about the 20th of June. It was no stretch of their authority in any of the indorsers in the Pittsburgh Bank to call for execution on that judgment on the 10th of June, and to levy it instantly. If Bosler fy Co. had objected to this execution, it is not easy to discover on what grounds the court could have set it aside. We had some cases before us at Lancaster last May not unlike this. Howry and Eshelman were largely in trade, and largely in debt; they had borrowed money on bond, with some of their friends as sureties in those bonds, and in bank with some of their friends indorsers, and to secure those friends, had given them judgment without stipulating for any stay of execution. While those bonds and notes had still a short time to run, the creditors of Howry and Eshelman sued them, entered rules of arbitration, and obtained judgment, and in twenty days could take, and in fact did take execution on the twenty-first day. In the mean time their sureties and indorsers took out executions on their judgments, though none of them had paid the debts for which they were sureties, and were not liable to suit for those debts for some days yet to come. The property was sold, and money brought into court. The common pleas decided, and under the act of 1827, an appeal to the supreme court, and the executions thus issued by the securities and indorsers took the money, by a decision of a majority of this court. In those cases the defendants, as here, made no objection to the first executions. I will add, that in those cases the sureties had paid the money for which they were bound before the money was brought into court, so that there was no danger of the surety recovering money from his principal to pay a debt, and afterwards not paying it. So here, the bank recovering the debt, the indorsers are thereby at once discharged; and although I was not entirely satisfied with the decision at Lancaster, yet, upon reflection, there is no actual injustice in collecting the debt from the principal in the first instance, instead of pressing the surety and turning him round to the principal. And when the form of the agreements will admit of its being collected from the principal, perhaps no court will interfere to throw it on the surety in the first instance. The authority of those cases would determine the same point in this case. Towards the conclusion of his charge, the Judge comes to this opinion. “ The case as a matter of fairness depends upon this,” says he, “ was the object of the acquiescence and waiving protection from the execution, to give a preference to particular creditors, who were the indorsers of Bosler & Co.; or was.it the intent to get the control of the judgment, in order that the proceeds of the personal property might be applied at the option of the defendants, to secure any creditors they pleased ? If the former was their object, and it is clearly made out, I should be disposed to think the defendants would be entitled to the money. If the latter, it appears to me the most dangerous effects would result from allowing it to pass without censure.” And then again he says, “ if the acquiescence on the part of Bosler & Co. be considered by the jury as a fraudulent acquiescence, the verdict will be for the plaintiff; and such will be your verdict, if you deem there was no acquiescence at all.” One of the alternatives in this, to wit, “ was it the intention to get the control of the judgment in order that the proceeds of the personal property might be applied at the option of the defendants to secure any creditors they pleased,” could not, I apprehend, be fairly put to the jury; for if the Bank of Pittsburgh, or the indorsers in that bank, took out an execution and levied on Bosler & Co.’s property and sold it, the debt of that bank was so far extinguished; if the bank permitted the proceeds of sale to be lost in the. sheriff’s- hands, or permitted the sheriff to pay it to any person who had not a prior levy, it would not alter the case; not even if this was done at the instance of Bosler & Co., if any other judgment creditor of Bosler & Co. objected. A judgment creditor who has sold his debtor’s property, is satisfied in law, to the amount of the sale, if his sale is not set aside ; he never can demand that money, nor keep his judgment alive as to that money, as against other creditors. I do not see how it can then be left to a jury to decide, that the bank, which levied and sold and is claiming the proceeds, does not intend, and never intended to take the money; after it has got the money, it may give it away or throw it in the river; its debt is discharged, and the court and other creditors have nothing to do with the money after that. It seems to me, however, that where a creditor, who has taken execution on a fair and legal judgment and levied his money, and the sheriff brings it into court, cannot be deprived of it by leaving it to a jury to inquire whether he intends to make a good or bad, a probable or an impossible use of his proceedings and the money raised by the law for him. The last proposition by the judge, is still more objectionable, it is, that “your verdict will be for the plaintiff, Stocker, if you deem there is no acquiescence at all;” that is, no acquiescence by Bosler & Co. Now, acquiescence, in this case, means, and must mean, no opposition. When a man’s property is levied on and sold; and the money brought into court, and he makes no opposition, no objection, and no application to the court, he acquiesces; and if this state of things continues for years, and he whose property was sold, neither acts nor speaks in opposition to the proceedings, it is out of the question to leave it to a jury to decide, whether he acquiesces or not. If, however, the word acquiesce, in the hurry and inadvertence of the trial, was used instead of the word “ assent,” it will not mend the matter. After a silence, a want of objection or interference from 1823, an assent is to be presumed, or the length of time and change of circumstances will preclude them from expressing a dissent now, and it must be taken that they did not disagree, that they acquiesced at the time. Judgment reversed and a venire facias de novo awarded.

Opinion by Judge Craig, Consolidated here for argument and disposition are two trespass cases arising out of similar incidents occurring at the same place on the same date. In the first case, Jeri and Anthony Mistecka, wife and husband, filed their complaint in trespass against the Commonwealth, to recover, according to their allegations, for injuries suffered September 7, 1975 by the wife plaintiff while traveling in a motor vehicle on State Route 1 under the Bancroft Road Bridge, in New Garden Township,. Chester County, as a result of a large rock being thrown by unknown assailants from the bridge down upon plaintiff’s motor vehicle. The complaint further avers that at least 26 similar incidents of rock-throwing upon motorists traveling Route 1 had occurred at or near that location and had been reported to the state police during the two years preceding. Plaintiffs also aver that 3 such incidents occurred on the same date within 25 minutes preceding the striking of plaintiffs’ car. The complaint avers negligence on the basis that, despite notice of the rock-throwing incidents averred, the Commonwealth had failed to erect appropriate barriers or screens to protect the traveling public on Route 1, failed to warn the traveling public on Route 1 of the danger, failed to investigate, police and prevent such incidents and otherwise failed to take adequate precautions to protect the motoring public on Route 1 from the danger of rockthrowing. The averments conclude with a description of the injuries and a demand for judgment in an amount in excess of $10,000.00. The averments of the trespass complaint in the case of Sherley M. Davis and Elsie Davis, her mother, against the Commonwealth and others, are substantially similar, describing injuries to plaintiff Sherley M. Davis on the same date and at the same location. With the exception of the Mistecka complaint’s reference to other incidents on the same day, the Davis averments of notice and negligence against the Commonwealth are similar. In addition, the Davis complaint identifies defendant township and defendant county as the local government jurisdictions within which the site is located. The Davis complaint also names as defendant Grof and Myers, Inc., identifying that corporation as an independent consulting engineer for the Common wealth with respect to the design of bridges, highways and overpasses. A separate Davis count avers negligence in design, manufacture, construction, installation and maintenance as an alternative basis for liability. Although the Davis complaint names James Wilson, Secretary of the Pennsylvania Department of Transportation, and Robert P. Kane, Attorney General of the Commonwealth, as defendants in the caption, those individuals are not identified in the complaint so that none of the averments of negligent conduct appear to be directed toward them. In both cases, the Commonwealth, by answer and new matter, pleads sovereign immunity as a defense, and that issue has been placed before us by the Commonwealth’s motion for judgment on the pleadings in both cases. In the Davis case, the Commonwealth, by preliminary objections, has also entered a demurrer with respect to the naming of Secretary James Wilson and Attorney General Robert P. Kane as defendants in the caption. In addition, defendant Chester County, by preliminary objection, has filed a demurrer for failure to state a cause of action against the county; also raised is the bar of pendency of a prior action. In addition, the county claims that venue properly lies in Chester County. With respect to the central question of sovereign immunity, the plaintiffs and the Commonwealth are in agreement that the Act of September 28, 1978, P.L. 788, Act No. 152-1978 (Act 152), amending the Judicial Code, 42 Pa. C.S. §101 et seq., is applicable to these cases. Section 5 of Act 152, 42 Pa. C.S. §5110 (Note), after the abrogation of the doctrine of sovereign immunity in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), reinstated that doctrine with retroactive effect. We have recently held the retroactive effect to be constitutional. Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, 405 A.2d 1089 (1979). Therefore, the prime question is whether or not the liability claims in these cases fall within any one of the eight instances enumerated by Act 152, 42 Pa. C.S. §5110, as to which the legislature has granted a limited waiver of sovereign immunity. We conclude that subsection (a)(5) of 42 Pa. C.S. §5110, is, in the main, inapplicable to the situation here because it pertains to “Damages, other than property damages, caused by a dangerous condition of highways under the jurisdiction of Commonwealth agencies created by potholes or sinkholes or other similar conditions created by natural elements. . . .” (Emphasis supplied.) The situations described in these complaints are clearly not created by natural elements. Accordingly we focus on subsection (a)(4) of that same section, which subsection reads as follows: (4) Commonwealth real estate, highways and sidewalks. — Damages caused by a dangerous condition of Commonwealth real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of the Commonwealth and Commonwealth real property leased to private persons, and highways under the jurisdiction of Commonwealth agencies except as limited in paragraph (5).. . Thus, the first specific issue is, where there are averments of a continuing history of unknown assail ants throwing rocks from a local highway bridge overpass down upon a state highway beneath, so as to injure travelers on the state highway, does that situation constitute a “dangerous condition” of a highway under the jurisdiction of the Commonwealth? Counsel for the Commonwealth stress the fact, established by the averments, that the danger does not arise from something resting within the right-of-way of the state highway, but rather involves the intervention of third parties, unconnected with the Commonwealth, who are themselves physically situated upon an overpass above — and to that extent, removed from —the state highway. Although we must accept every well-pleaded averment as a true statement of fact, there are no averments that the Bancroft Road Bridge itself is under Commonwealth jurisdiction and therefore we can, at the most, consider it to be identified as a public road and bridge under local jurisdiction. As a matter of law, we conclude that such a situation is a “condition” within the terms of subsection (a)(4). Among the ordinary meanings of the word “condition” is reference to “a state of affairs that hampers or impedes or requires correction.” Webster’s New Collegiate Dictionary 235 (1977). Most importantly, it is clear that the circumstances here give rise to a condition which is related to travel on the highway and is conceivably correctable. Generally, in cases under 42 Pa. C.S. §5110(a)(4), we will leave to the determination of a jury the question of whether or not the condition is a dangerous one. That aspect is specifically expressed in the initial clause of the proviso, stating, “. . . the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of damage which was incurred. . Both of the complaints under consideration make a sufficient averment for pleading purposes; although they were both filed in 1977, antedating the introduction of the statute by which they are now governed, the Mistecka complaint several times describes the condition as a “danger,” and the Davis complaint pleads the existence of a “dangerous, ultra-hazardous and defective instrumentality. ’ ’ Therefore, in both of these cases, we will dismiss the Commonwealth’s motions for judgment on the pleadings. Such an order will be dispositive of the issues presently before us in the Mistecka case. In the Davis case, we have an additional demurrer by the Commonwealth, on behalf of individual defendants Secretary Wilson and Attorney General Kane, based on the failure of the complaint even to identify them. It is plain that it is proper to sustain the demurrer as to defendants Wilson and Kane in the Davis case. Defendant County of Chester, also by preliminary objection, has entered a demurrer to the claims against it in the Davis case, based on the argument that, absent any averment that the county owns or controls the Bancroft Road Bridge, no basis for a duty on the part of the county has been established by averment. It is true that paragraph 9 of Count One of the complaint does not aver any ownership or control but only avers failures on the part of the county in connection with the design, construction and maintenance of that overpass and in connection with the provision of protective devices, police protection and warnings. In the alternative, the second paragraph of Count Two avers that the county, along with the other defendants, “jointly and/or severally, designed, manufactured, constructed, installed and/or maintained the said Bancroft Road overpass and adjacent stretch of Route One, passing thereunder, in such a defective design, fashion and condition, rendering it unreasonably dangerous” so that the defendants are subject to strict liability under Section 402A of the Restatement of Torts (Second). As a matter of law, we conclude that the county’s demurrer should be sustained. The complaint fails to place any duty upon the county by way of ownership or control, Otto v. American Mutual Insurance Co., 241 Pa. Superior Ct. 423, 361 A.2d 815 (1976), and Restatement of Torts Section 402A is inapposite to the present situation because it pertains to sellers of products, clearly not applicable here. Although plaintiffs indicate that an averment describing the county as a seller would have to be accepted as true, we find no such averment in the complaint. Accordingly, in the Davis case, we will sustain the preliminary objections on behalf of the County of Chester, as well as those on behalf of the individual defendants. Under the Judicial Code, 42 Pa. C.S. §931(a)(c), jurisdiction is properly in the courts of common pleas as to actions pursuant to 42 Pa. C.S. §5110, with venue to be laid, under subsection (c), in the “county in which the principal or local office of the Commonwealth agency is located or in which the cause of action arose. ...” We see no point to plaintiffs’ claim that venue should be placed in Montgomery County simply because the applicable local office of the Pennsylvania Department of Transportation is there; particularly in view of the fact that the related pending Davis action against Chester County is before that Court of Common Pleas, we will transfer the Davis case there for further proceedings, to permit consolidation at the discretion of that court. Venue for the Mistecka case will be treated the same. President Judge Bowman and Judges Crumlish, Jr. and DiSalle concur in result only. Order in 1801 C.D. 1977 And Now, this 1st day of October, 1979, it is ordered that the motion for judgment on the pleadings by defendant Commonwealth of Pennsylvania is dismissed, and the record is transferred to the Court of Common Pleas of Chester County for further proceedings. Order in 1809 C.D. 1977 And Now, this 1st day of October, 1979, it is ordered that: 1. The preliminary objections on behalf of defendant James Wilson and defendant Robert P. Kane are sustained; and 2. The preliminary objections on behalf of defendant Chester County, demurring to the complaint for failure to state a cause of action, are sustained; and 3. The motion for judgment on the pleadings by defendant Commonwealth of Pennsylvania is dismissed; and 4. The record herein shall be transferred to the Court of Common Pleas of Chester County for further proceedings. We have not failed to note that the last five words of subsection (4) refer to limiting language in subsection (5), which ends with a proviso. Because the Commonwealth has not raised the point, we’will not decide what effect, if any, that reference might have, on the facts of this record.

Yeates, J. Neither Judge Smith nor myself are ashamed to admit, that in the decision of this cause at Nisi Prius, we were mistaken in the principle which governed our opinion. We were misled by the authority in 2 T. R. 231, and the cases in 1 Salk. 21.2 Salk. 456, that malicious prosecution will not lie, where an indictment has been found and a nolle prosequi entered. The law does not seem to discriminate accurately on this subject, when the prosecution shall be considered at an end. The case has been much more fully argued now; and we freely admit, that from the new authorities, which have been adduced by the defendant’s counsel, the plaintiff has misconceived his suit, by bringing an action of slander, instead of malicious prosecution. In the latter, case, the defendant would have had it in his’power to shew a probable cause of complaint to the justice for the supposed forgery, as a ground of defence to the civil action. By proceeding in an action of slander, the defendant was deprived of this right; and we therefore are of opinion that a new trial be awarded. See Secar v. Babcock, 2 John’s N. York Reports 203. The other members of the court assenting hereto a new trial was awarded. The plaintiff’s counsel then moved to amend the declaration by adding a count for malicious prosecution, under sec. 6, of the arbitration act passed 21st March 1807, 7 St. Laws 562. All suits are to be tried on their true merits, and not to be set aside for informality. The words of the act are very large, and im~ power the court to permit an amendment. The plaintiff was taken by surprise on the trial, by the plea of justification being withdrawn after the jury were sworn. This was opposed by the defendant’s counsel. This suit was brought in the Common Pleas to August term 1797, and an amendment is now prayed for in July 1808. The delay has been very great. *The amendment required, essentially alters the nature r51c of the action ; and moreover takes away the right of the 5 1 defendant to plead the statute of limitations. At all events, the plaintiff should pay the costs until the present time. The plaintiff in reply. The delay is not solely imputable to us. The defendant removed the cause when the suit was ready for trial below; and his counsel must share the blame of not arguing it earlier in the city. The court will grant leave to amend in penal actions, where the amendment does not introduce any new substantive cause of action. 7 T. R. 155. Per Cur. Here certainly has been delay ; but it is said to be imputable to both parties. 'We have the power of amending at common law; but by doing so in this instance, we give the plaintiff a distinct substantive ground of suit, which he never contemplated before; and prevent his opponent from sheltering himself under the statute. This is wholly inadmissible. Cited in 5 Binn. 54; 2 S. & R. 359; 6 S. & R. 295; 11 S. & R. 101; 1 Wh. 290; 45 Pa. 404, on the question of amendment. Cited in 106 Pa. 123; 14 W. N. C. 542; 18 W. N. C. 5, to show that the plea of the statute of limitations is no longer considered an unconscionable one. Referred to in 10. S. & R. 225; 3 W. & S. 273. The clause was introduced into the arbitration act to prevent nonsuits for matters of form, and to bring the true merits of each case before the court, where the controversy remains the same. Yeates, J. said a motion of the like kind was denied on argument in Philadelphia, where the canal company asked to introduce new instalments on notes given by the stockholders into their declarations. Motion denied.

Opinion by Mr. Justice Mitchell, The libel sets out a statutory cause of divorce in general terms, that the respondent had by her conduct rendered the condition of the libellant intolerable and his life burdensome, but then unfortunately proceeds to specify particulars which tend to negative the general averment. “ Thereby,” it charges, he was obliged to expend money for a trip to Europe for her, he was left alone and forced to break up housekeeping, and the fact that she remained away became the scandal and talk of the neighborhood. Her going away was by his consent, even if extorted reluctantly, and if she remained away against his will and request, that tended to prove desertion, not cruel and barbarous treatment. The libel therefore was defective, and if that were all that was in the case, it was rightly dismissed. But an examination of the evidence forces us to differ entirely from the view taken by the learned court below. Many outbursts of temper on the part of respondent, not confined to bad language and threats, but accompanied by acts of great violence, are testified to by several witnesses, and are scarcely denied by the respondent herself. Thus she admits on cross-examination that she broke the glass door in his store, and interfered with his customers, that she broke dishes and threw them down stairs, threw hot coffee on the girl, and on two occasions when her stepsons complained of the dinner she brought in slop and threw it on the table. The testimony of the other witnesses enlarges this list considerably by matters not necessary to detail. Her own admissions give them - more force than possibly they might have of themselves. The weight of the evidence shows a course of conduct well calculated to make any man’s life burdensome. The libellant’s conduct was not nice or liberal, but we see no ground for saying that the respondent was the injured party. On the contrary, a case for divorce on the general ground of conduct rendering libellant’s condition intolerable and his life burdensome, is made out. The libel as already said was formally defective, but the defect was in setting out too much, not too little. A good cause of action is averred in the terms of the statute, and the evidence sustains it. The particulars which make the libel inconsistent and therefore demurrable, may be struck out as surplusage without in any way changing the cause of action, or the relevancy of the evidence to it. We are of opinion that an amendment in that respect should be allowed, and thereupon a divorce decreed. The decree made was also erroneous in another respect which must have been an oversight of the learned court below. It ordered alimony to be paid at the rate of six dollars a week “ until the further order of the court.” For this there was no warrant. The respondent’s petition was for alimony pendente lite, and the order of the court should have been limited to the pendency of the suit. With the decree dismissing the libel the order for alimony should have terminated. The existence of an order of the quarter sessions requiring libellant to pay six dollars a week for the support of his wife, did not prevent the court of common pleas from decreeing alimony pendente lite. On the contrary, the superior or rather the more general jurisdiction on this subject is in the divorce court. It may decree such sum as the circumstances call for, to be commensurate with the position and financial ability of the parties. The quarter sessions on the other- hand is limited to the prevention of the wife becoming a charge on the public. Both orders may run concurrently during the pendency of the proceedings, but when the common pleas has awarded a divorce, with or without alimony, the jurisdiction of the quarter sessions will be at an end. Decree revérsed and procedendo awarded.

COM. EX REL. S. D. PARKER, APPELLANT, v. BLATT. Opinion by Mr. Justice Fell, The assignments of error relate to two orders made by the court in proceedings under a writ of habeas corpus, concerning the custody of the minor children of the relator. Neither of these was a final order from which an appeal lies. In each it was directed that the writ should stand over as a pending writ subject to such further action as the court might adjudge right and proper. Until a final disposition of the case and an order in pursuance thereof it cannot be the subject of review by this court. The order of April 18, 1894, was acquiesced in by all the parties, and the appeal was taken almost immediately after the order of June 7, 1894, was made, and without requesting the court to proceed to final judgment. The subject was one of the most difficult and delicate upon which a court is called to act. The legal right of the parent to the custody, care and companionship of his children is not to be interfered with except for the most substantial reasons affecting their welfare. The hasty disposition of such a case, unless it be very clear, is likely to result in great injustice to the parent or ultimate injury to the child; and it frequently happens that the court can be best informed as to its duty, and ascertain what final action should be taken, by observing the results of such tentative orders as were here made. It is however the right of the appellant to have a final determination of the case and an order filed in pursuance thereof. This will doubtless be accorded him upon a proper application. The appeal is dismissed. COM. EX REL. BLATT v. S. D. PARKER, APPELLANT. Opinion by Mb. Justice Fell, Jan. 7, 1895: The facts in this case are identical with those in Commonwealth ex rel. S. D. Parker v. H. S. Blatt, and for the reasons stated in the opinion filed in that case the appeal is dismissed.

Opinion by Mr. Justice Elkin, June 22, 1909: The tax settlement in this case is for that part of the fiscal year extending from the first Monday of November, 1906, to June 20, 1907. The principal contention of the appellee company in the court below and here is that the Act of June 13, 1907, P. L. 640, taxing the shares of capital stock of trust companies, violates sec. 1 of art. IX of the constitution, which provides that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. The learned court below after giving the parties a patient hearing and the case intelligent and exhaustive consideration held the act to be unconstitutional. We, however, cannot agree with the views expressed on the controlling questions involved, nor with the conclusion reached. The act of 1907 is a revenue measure and provides for the levying of a tax upon the shares of stock of what are popularly known as trust companies. A brief recital of the legislative history of these companies and of the’ policy of the state in taxing their capital stock, together with an understanding of the basis for ascertaining the actual value of shares of stock in banking institutions proper, will be helpful in the consideration of the questions here raised. What are known as trust companies are incorporated under the general corporation act of 1874, and the original purpose for which they were created was to engage in the business of title insurance. In 1881, the legislature broadened the scope and character of their business, and in 1889 the statutory door was more widely opened to this class of corporations. They grew in public favor until the legislature in 1895 conferred upon them the power to receive moneys on deposit and issue their obligations therefor, to invest their funds in and to purchase real and personal securities, and to loan money on real and personal securities. While these acts in express language denied to companies so incorporated the right to engage in the business of banking, they were in fact authorized to do some of the things for which banks are organized. It is true they are not banks of issue, nor of discount and deposit, in the technical sense, yet in the commercial world their transactions are regarded as in the nature of banking business. The policy of the commonwealth for more than twenty years was to tax the capital stock of these companies in the same manner as other corporations created under the general corporation act of 1874 were taxed. They made their reports to the auditor general under the general revenue acts of 1879, 1889 and 1891, and other statutes, just as other private corporations did, and the valuation of their capital stock was ascertained and the tax settlement made upon the same basis. This method of taxing the capital stock of these institutions continued in force until the act of 1907 was passed. As the trust company business grew in magnitude, as it did grow after the passage of the act of 1895 which conferred quasi banking privileges, the question of the proper method of taxing the capital stock of these corporations frequently arose. It was contended in their behalf that banks were their natural competitors; that their business partook of the nature of banking; and that they should be taxed in like manner. As a result of this feeling and the agitation which followed it the act of 1907 was passed. It is apparent that the legislature intended to tax trust companies on the same basis as banks. In this connection it will be helpful to consider the policy of the commonwealth in taxing bank stocks. The old acts of 1850, 1867, 1868, 1869 and 1870, relating to the taxation of banks and shares of stock in banking institutions were superseded by the act of 1891, which provided that any bank or savings institu tion incorporated lay this state or by the United States may collect from its shareholders and pay into the state treasury a tax of eight mills on the par value of its shares in lieu of all taxation except upon its real estate; and upon failure to so elect to . pay a tax upon the par value as above indicated, it shall be subject to a tax of four mills upon the actual value of its shares of capital stock without any exemption. This act provided alternative methods of levying a tax on bank shares. In its practical operation it produced great inequality of burden as applied to different banking institutions. Several national banks in the city of Pittsburg raised the question of its constitutionality before the auditor general and afterwards in the courts on the ground that it was repugnant to that provision of the constitution which requires taxes to be uniform upon the same class of subjects. When that case was heard before the court of common pleas in Dauphin county the evidence produced showed many inequalities upon the basis of what was considered the actual value of the shares of stock in different banking institutions. Notwithstanding these inequalities this court held the act to be valid and the taxes levied thereunder to be uniform within the meaning of the constitution: Com. v. Merchants’, etc., Nat. Bank, 168 Pa. 309. That case was appealed to the supreme court of the United States, and every question argued in the court below and pressed here in the case at bar was then raised and considered with the result that the judgment of this court was affirmed: Merchants’, etc., Nat. Bank v. Pennsylvania, 167 U. S. 461. It is true, these cases arose under the act of 1891, which was repealed by the act of 1897. The latter act, remedial in character, was intended to correct some of the inequalities about which complaint was-made in the case above cited. The tax rate of four mills on the actual value of the shares of stock was not changed by the act of 1897, but a definite method of ascertaining the actual value of each share was provided, which method consisted in adding together the amount of capital paid in, the surplus and undivided profits and dividing the amount so ascertained by the number of shares. Each bank, however, had the right to elect to collect annually from its stockholders a tax of ten mills on the par value of its share in lieu of all other taxes, except upon real estate. The act of 1897 increased the tax rate from eight to ten mills on all banks electing to pay on the par value of their shares, but the tax rate on the actual value of the shares of those banks not electing to pay on par value remained the same as under the act of 1891. All this was done to make more nearly uniform the taxes paid by banks under this method of taxation and to correct to some extent the inequalities complained of under the old act. Certainly the inequalities of burden are not so great under the act of 1897 as they were under the act of 1891, and since that act stood the constitutional test in all the courts, it would seem as though the later act should be reasonably secure from attack on the ground indicated. The act of 1907 under which the tax is claimed in the present case, makes what is commonly known as trust companies, a class of corporations for the purpose of taxation, and substantially re-enacts the provisions of the act of 1897, as the basis of determining the valuation of the shares of capital stock. The act of 1907 provides, as does the act of 1897, that the actual value of each share of stock shall be ascertained and fixed for the purpose of taxation by adding together the amount of capital paid in, the surplus and undivided profits and dividing this amount by the number of shares. Every argument made against the act of 1907, could as well be made against the act of 1897, which for a period of twelve years has remained unchallenged as the basis for taxing shares of bank stocks. The power of the legislature to make trust companies a class for the purpose of taxation is conceded, as indeed it must be, under the rule of our cases. The power to classify being conceded, our only concern in the present case is to determine whether the method of taxing the shares of trust company stocks under the act of 1907 is uniform upon this class of subjects. This exact question as applied to bank stocks was settled in the bank case above referred to in favor of the commonwealth and against the contention made by the appellee here. The constitutional mandate only requires taxes to be uniform upon the same class of subjects. The legislature has the power to classify taxable subjects within reasonable limits, to fix the tax rate and to provide a method by which to ascertain the taxable value in each particular class. This power was exercised in 1907 by making trust companies a class for the purpose of taxation, and a uniform tax rate and method of ascertaining taxable value applicable to the entire class were provided in that act. The method provided for ascertaining the value of shares of stock, the kind and character of the report to be made to the auditor general, the penalty for making a false return or ho return, and the rate of taxation, apply to all trust companies incorporated and doing business under the laws of the commonwealth. Up to this point at least the constitutional injunction that all taxes shall be uniform upon the same class of subjects has been fully met by this act. The only complaint that can be made, and it has been made with great force and ability by the learned counsel for the appellee, is that the statutory method of determining the actual value of the shares in practical operation produces such inequality of burden as to • offend against the constitutional provision requiring uniformity. We think this is no longer an open question in Pennsylvania. It was finally settled in the bank case above cited fourteen years ago. It is true, the act of 1891 under which that case arose did not provide a definite method of ascertaining the actual value of shares of stock, but it is equally true that the alternative method therein provided, did produce greater, inequality of burden than anything complained of in the case at bar. The contention then made was, and it now is, that the taxes levied were not uniform, because as measured by the actual value of the shares of stock upon which the settlement was made great inequality of burden .resulted. This court pointed out in that case that the inequalities complained of were due to causes that the legislature could not be required to foresee and provide against. The act was held to be a valid exercise of legislative power because the tax rates and methods of determining taxable value were uniformly applied notwithstanding the inequalities of results. The legislature has the general power to fix the valuation of shares of stock for the purpose of taxation upon the basis of actual value to be ascertained by including all elements of value, or of general market value, or of selling value between particular dates, or real intrinsic value based upon assets and earnings, or upon any other uniform basis of valuation applicable to each member of the class. We can see no reason why the legislature may not definitely provide a method to determine how the taxable value shall be ascertained. The act of 1907 provides that the actual value of each share of stock shall be determined by adding together the capital paid in, the surplus and undivided profits and dividing the result thus obtained by the whole number of shares issued and outstanding. It is doubtful whether any better method of ascertaining the real intrinsic actual value of the shares could be adopted. It has the advantage of being a definite fixed basis sustained by business experience, and in most instances is the surest test of the real value of the shares. It does not take into account selling value on the stock exchange or in the open market, and this fact is strongly urged against the act, but it was within the power of the legislature either to include or exclude such selling value as an element to be considered in ascertaining taxable value. In this instance selling value was not included, which in our view of the law is a legislative and not a judicial question. Some confusion has arisen in the consideration of the present case by making comparison between the method of ascertaining the actual value of shares of stock under the general revenue act of 1891 and the method provided in the act of 1907. A little reflection will show the error of such comparison. The act of 1891 did provide for the taxation of the shares of capital stock of corporations on the basis of actual value, and indicated the elements to be considered in ascertaining that value. Courts in construing this and other similar acts have said the legislative intention voiced therein was to require the accounting officers in ascertaining the taxable value to take into consideration all necessary elements of value, such as dividends, profits, earning power, indebtedness, value of franchise and market price. But the courts have done nothing more than to define and limit the powers of the legis lature under the constitution. It is the duty of the legislature to fix a uniform tax rate and to provide a uniform method of valuation, and this was done in the act of 1907. The act of 1891 provides what elements shall be considered in ascertaining the actual value of shares of stock, and the courts have enforced the statutory requirements. The legislature, in 1907, made a new class of taxable subjects and provided in express terms a definite method of determining the actual value of the shares of stock belonging to this taxable class. It is likewise the duty of the courts to enforce this act according to its provisions, unless the constitution forbids. As has been hereinbefore stated the inequality of burden complained of is not sufficient to justify the striking down of the act. The inequalities elaborated in the court below and dwelt upon here depend upon what basis is taken for fixing the actual value of the shares. If the actual value of all the shares of a particular corporation is to be ascertained upon the basis of what a few shares may sell for in the stock market, in some instances to make a fictitious value in others for speculative purposes and in still others to obtain corporate control, of course great inequality may be figured out upon such bases. It is apparent from the record in this case that it was sales of this character that were largely considered in speaking of the actual value of the shares. Such sales are unreliable and unsatisfactory in determining real fixed actual value. As applied to trust companies generally, it is a reasonable assumption, based upon sound business judgment, that the actual intrinsic value of the shares of stock of every such institution is best measured by the amount of capital paid in, the surplus and the undivided profits. This is the basis adopted by the legislature for ascertaining the actual value of the shares of stock for the purposes of taxation in the act of 1907. The inequalities of taxable burden upon which the learned counsel for appellee rely to have this act declared unconstitutional are no greater, indeed not so great, as in Com. v. Canal Co., 123 Pa. 594, or in Com. v. Brush Electric Light Co., 145 Pa. 147. ' In both of these cases this court held the acts under which the taxes were imposed to be a valid exercise of legis lative power and not repugnant to the constitutional requirement as to uniformity. The authority of these cases has always been recognized and followed. There has been no departure from the principle therein laid down although the question has been frequently raised. To affirm the judgment entered by the court below would mean the overruling of these cases and would in effect declare the act of 1897 invalid for the same reason. Nothing but imperative constitutional necessity would warrant such a sweeping result, and we are not convinced that there is any such necessity. The question has been raised whether the act of 1907 was in force during the period for which taxes are claimed in the present case. We agree in this respect with the contention of the learned counsel for appellee, which is, that the act of 1907 was not intended to be, and is not, retroactive in its operation. It was not in force during the period for which taxes are claimed under the settlement made in the case at bar. However, this is not an insurmountable difficulty for the commonwealth. It is perfectly clear that the old law was in force until the new act became operative, and either the old law or the new act covers the period in question. In point of fact, however, the act of 1891 was in force during the entire period, and the actual value of the shares should have been ascertained as required by that act. There is nothing on the face of the record to show under what authority the tax settlement was made. On appeal from the settlement made by the accounting officers of the commonwealth it was the duty of the court to determine the valuation of the shares of stock under the law in force during the period for which taxes are claimed. When, therefore, the record is remitted the court below can proceed to hear and determine the proper valuation of the shares of capital stock under the act of 1891. Judgment reversed and record remitted with directions to the court below to hear the parties and determine the actual value of the shares of stock as above indicated. Opinion by Mr. Justice Elkin, February 14, 1910: After the opinion had been handed down and the record re mitted directing the court below to proceed to determine the valuation of the shares of stock of appellant corporation under the law in force when the act of 1907 went into effect, application was made to this court for a rehearing upon the question whether a tax settlement can be made under the act of 1891 for the period in question and the amount in taxes so ascertained can be collected after the repeal of the statute. This question was not argued when the case was first presented and the court concluded to withhold the opinion and to grant a rehearing on the single question thus raised. Additional briefs have been filed, oral arguments made, and the exact question raised is now before us for decision. It is contended for appellant that the act of 1907 unconditionally-repealed all prior acts or parts of acts relating to the valuation for taxation purposes of the shares of capital stock issued by trust companies, and that the commonwealth having failed to expressly reserve the right to collect taxes which had accrued under the repealed statutes during the period before the new law became operative has lost its right to collect such taxes at all. In other words, that the repeal of the old law without a saving clause in the new act reserving the right to collect taxes accrued at the time of the repeal, releases such corporations from liability for the taxes thus accrued but not paid. No doubt the general rule is that when a statute is repealed without a saving clause, it is to be considered as though it had never existed except as to transactions past and closed. The rule, however, like any other legal principle of general application must be understood and applied, if at all, so as to give effect to the legislative intention. It is not so much what the general rule of construction is as what did the legislature inténd by repealing all acts or parts of acts inconsistent with the new law which did not abolish taxation on this particular class of corporations but only provided a different method of ascertaining the taxable value. It certainly cannot be seriously contended that when the legislature passed the act of 1907, which only changed the method of determining the value of shares of stock issued by trust companies, it was intended to release these same corporations from liability to pay taxes which had accrued at that time. The only rational interpretation of the legislative intention as expressed in the statute is that the taxation of such shares of stock should continue after the passage of the act as it had existed for many years prior to that time except as to the basis of valuation. The act of 1907 did not provide a new system of taxation, nor did it introduce new taxable subjects. It was a revenue statute and was not intended to defeat the right of the commonwealth to collect her taxes. We think the sound rule is, especially as to acts which provide for the assessment and collection of annual taxes, that a statute repealing former laws on the same subject does not abolish all rights and remedies under the repealed acts, if the legislative intent not to abolish them appears. This view of the law finds ample support in Hickory Tree Road, 43 Pa. 139; Telegraph Company v. Com., 66 Pa. 70, and Wright v. Oakley, 46 Mass. 400. The learned counsel for appellant rely on Com. v. Standard Oil Co., 101 Pa. 119, to support the contention that no tax can be collected in the present case because of the repealing clause of the act of 1907. It is true that this case gives some color to this contention, but what was there said must be understood to have reference to the particular facts under which the right to collect a penalty was asserted. The commonwealth claimed a penalty from the corporation, and this court pointed out that the penalty had been repealed by subsequent legislation and that while the subsequent act expressly reserved the right to collect all taxes accrued under former statutes, no such reservation was made as to the penalty. From this it was argued, and this court so held, that the legislative intention to release from the liability to pay such penalty appeared in the act itself when it reserved the right to collect the taxes but not the penalties. Even that case was put upon the ground of legislative intention. In the case at bar the legislative intent to release from the payment of accrued taxes does not appear, and we think it is clear nothing of the kind was intended. There are additional reasons why the case at bar should not be considered within the rule contended for by appellant. The accounting officers of the commonwealth in making settle ments of taxes against corporations derive their authority from the act of 1811 which has been in force for almost a century. It was in force during the period for which taxes are claimed, and is still in force. The right of appeal is given under this act, and the jurisdiction of the court to hear and determine tho questions raised is conferred by the same act. This act was in no way affected by the acts of 1891 and 1907, so that the remedy for the settlement and collection of the tax in question as well as all other taxes was not changed, or modified or repealed. The remedy has remained undisturbed by any subsequent legislation. When the case came into the court below on appeal from the settlement made by the accounting officers, the whole proceeding was de novo. The court then had the power to hear and determine the questions raised and fix the valuation of the shares of stock according to the method of ascertaining that value provided by law. The case therefore being before the court on appeal under an act still in force, we think the power of the court to hear the case and to determine the valuation of the shares of stock according to the method fixed by the law in force during the period for which taxes are claimed is not open to serious qúestion in view of what has been hereinbefore stated in reference to the repealing clause. The question has been raised whether this annual tax can be apportioned so as to be collected for a fractional part of the year. The established practice is to treat taxes of this character as apportionable when the equities or necessities of the case so require. We can see no legal objection to this method of procedure, especially in view of the fact that the tax is imposed “at the rate of five mills upon each dollar of the actual value of its capital stock.” There is much force in the argument of learned counsel for the commonwealth that when in a contract it is provided that interest shall be paid “at the rate of six per cent per annum,” it means'that interest shall only be paid at that rate for the fractional part of the year when the contract was in force. It frequently happens that corporations are formed in the middle or near the close of a fiscal year, and it is apparent that in such cases the commonwealth should not lose the tax for that part of the year during which the capital stock was outstanding, and it would be unfair to impose the tax for the whole year upon a corporation which was in existence only for a few months. This is why the practice has grown up of apportioning the tax to the time the capital stock was outstanding. This practice is founded on equitable principles and just considerations, and we can see no legal reason why it should be disturbed. It is within the power of the accounting officers of the commonwealth in the first instance, or of the court on appeal in a proper case, to apportion the tax according to the time the stock is outstanding, or to determine the amount of tax due for that portion of the year for which'taxes are claimed. After due consideration we have concluded that the court has the power to ascertain the value of the shares upon the basis indicated in our first opinion and that the order then made should not be disturbed. Record remitted so that the value of the shares may be ascertained according to the views hereinbefore expressed.

Opinion by Mr. Justice Moschzisker, Plaintiffs sued in assumpsit to recover $5,000 alleged to have been paid defendant under mistake of fact; in accordance with binding instructions, a verdict was rendered for defendant, and plaintiffs have appealed from judgment thereon. B. S. Kunkel died October 1, 1911, testate, without lineal descendants; by his will, dated 1908 and republished by codicil in 1911, he provided, inter alia, “I give to each of my brothers, Wm. F. Kunkel and Charles H. Kunkel, if living at the time of my decease, the sum of five thousand dollars”; the present plaintiffs were appointed executors. William F. Kunkel died March 5, 1910, leaving an only child, William B. Kunkel, the present defendant, to whom plaintiffs paid the $5,000 which would have belonged to his father had he survived testator; this was done under circumstances we shall briefly relate. The trust company executor wrote John G. Johnson, Esq., who represented the estate, saying its coexecutor desired to pay the legacy in question to William B. Kunkel, and it would do so if counsel deem that course proper. Mr. Johnson replied, acknowledging a copy of the will and stating: “Any devise or legacy in favor of a brother or sister of a testator who dies before the latter, in case he leaves no lineal descendants, goes to the surviving issue of the dead brother or sister, unless the will directs otherwise.” The vice-president of the trust company, who had the matter in charge and had corresponded with Mr. Johnson, upon receipt of his letter, without making any “inspection or examination of the will,” paid the legacy to defendant; subsequently counsel advised plaintiffs this was a mistake, since William B. Kunkel’s father had not survived testator. The present suit followed the refusal of a demand for repayment. The Act of July 12, 1897, P. L. 256, provides that any devise or legacy in favor of a brother or sister, when a testator leaves no lineal descendants, “shall not be deemed or held to lapse” by reason of the decease of the devisee or legatee in the lifetime of the testator, if the former leaves issue surviving the latter, “saving always to every testator the right to direct otherwise.” That the present testator did “direct otherwise” is apparent, for he expressly provides that, in order to take, the legatees must be living at the time of his decease; in other words, that the legacies, respectively, shall lapse if either of the brothers predeceases him. This is th.e plain meaning of the will, leaving no possible room for legal construction to the contrary; and, when the letter from counsel is read attentively, it is clear he advised on the law as we have stated it. True, immediately after his correct legal advice, Mr. Johnson adds: “Under these circumstances, as Benjamin S. Kunkel left no children, and as William F. Kunkel left but one child, the legacy will be payable to the latter”; but he evidently assumed, as a matter of fact, that Benjamin S. Kunkel’s will did not “direct otherwise,” and the fourth assignment of error complains because plaintiffs were refused permission to show that, at the time the letter was dictated, the writer thereof “did not have before him the will of Benjamin S. Kunkel and did not look at the will or know that the legacy was conditional.” We see no necessity for ruling on this assignment, however, for, as already said, it is apparent Mr. Johnson made no mistake of law; his mistake was a misapprehension of the facts (referred to in his letter as “circumstances”) to which the law, as he correctly stated it, was to be applied. The phrase “under these circumstances,” which Mr. Johnson uses, to square with his preceding statement of law and subsequent advice as to payment, can refer only (since he mentions no circumstances concerning the provisions of the will) to an assumed set of circumstances, or facts— in regard to testator’s expressed wishes — which he plainly misapprehended. The sole basis for th.e claim that the payment was made under a mistake of law, is that it must be presumed Mr. Johnson read the will and pronounced his legal view as to its proper construction; though as we have said, his written opinion furnishes convincing evidence to the contrary. There is no such presumption; but, if there were, to afford it the effect claimed would give greater weight to that which, at the most, could be only evidence of a possible fact, than to what the document in question shows to be the fact itself, in violation of the rule that a presumption always gives way to a matter of fact when the latter is shown. The remaining assignments of error, in one form or another, question the propriety of the binding instructions and judgment for defendant; they bring us to a consideration of the real point in the case, namely, whether the money was actually paid under mistake of law or fact. As to this, it is apparent the mistake was made by thinking, and acting upon the hypothesis, that the will did not provide against a lapse in case of death of the legatee in the lifetime of testator, whereas the fact is directly to the contrary. This of course, presents a mistake of fact; and the opinion of the court below, dismissing plaintiff’s motion for judgment n. o. v., does not rule otherwise. It is there said: “The facts are not in dispute” and, “The letter [of Mr. Johnson] states a recognized rule of law,” but the opinion goes on to announce, as a general principle, that a “mistake of fact cannot be pleaded successfully where all the parties concerned knew or had means of ascertaining the facts”; and, acting on this theory, the learned trial judge concludes by saying, “We are unable to discover any fact warranting the entry of judgment in favor of plaintiffs.” The view of the court below is not in accord with the established law of this State. In Union Trust Co. of N. Y. v. Gilpin, 235 Pa. 524, we adopt, and affirm, per curiam, the opinion of Judge Newcomb. There, as here, on a mistaken assumption of fact, the amount of a legacy was paid to one not entitled thereto, although (again as here), the will disclosing the real facts of the case, was always at hand. Recovery was allowed on the theory that the mistake was one of fact, arising through carelessness in reading the will. While this issue was submitted to the jury, the court states (p. 529) : “Undoubtedly their conclusion was correct — no one could read the will attentively without being forcibly impressed...... that a blunder had been made......; the final answer here was not only consistent with the evidence, but it is not apparent how there could have been any escape from it.” In other words, the point as to the character of the mistake might have been ruled as a matter of law; and the circumstance that plaintiff had ready and ample means of information, which, if taken advantage of, would have avoided the wrong payment, was not sufficient to prevent recovery. Again, our Superior Court, by a well considered opinion, in Girard Trust Co. v. Harrington, 23 Pa. Superior Ct. 615, 620, also ruled that the circumstance of the person who made the payment of money under mistake of fact, failing “to take advantage of the means of knowledge within his reach......is not sufficient to disentitle him to recover it back,” citing Mr. Justice Trunkey in Meredith v. Haines, 14 W. C. N. 364, 366, to this effect: “Money paid by the plaintiff to the defendant, under a bona fide forgetfulness of facts which disentitled the defendant to receive it, may be recovered back; it is not sufficient to prevent a party from recovering money paid by him under a mistake of fact, that he had the means of knowledge of the fact, unless he paid it intentionally, not choosing to investigate the facts (Kelly v. Solari, 9 M. & W. 54). That was a case where the directors of a life insurance company had been informed the policy was forfeited in the lifetime of the insured, and, after his death, having forgotten the fact, paid the money on demand of the administratrix......Negligence in making a mistake does not deprive a party of his remedy on account thereof; it is the fact that one by mistake unintentionally pays money to another to which the latter is not entitled from the former, that gives the right of action: Lawrence v. American National Bank, 54 N. Y. 432.” In McKibben et al. v. Doyle, 173 Pa. 579, 581, we say: “The mere omission to take advantage of means of knowledge within the reach of the party paying [money under mistake of fact] does not prevent a recovery.” It is stated in 22 A. & E. Ency. of Law, 624, “Where money is paid under mistake of fact, it is no defense to an action for its recovery that the mistake arose through the payer’s negligence, if such negligence caused no harm to payee”; but defendant contends that, since he had parted with the $5,000 prior to a demand for its return, the negligence of plaintiffs, in paying the money, has caused him such harm as to estop them from recovery. This contention has no merit. Union Trust Co. v. Gilpin, supra, (p. 527), shows an offer to prove defendant had “meantime spent the money so that repayment would now be a hardship,” and it was held immaterial, the court saying (p. 529) : “There is neither reason nor authority to support the theory that the mere fact of the money having been spent amounts to an alteration of defendant’s legal position.” We see no reason here for departing from that position; if defendant spent the money, presumably he has either the things which it purchased or the benefit therefrom; or, if, as intimated in a refused offer of proof, he set the fund aside for the benefit of, or gave it to, his mother (for whose support he had a contingent legal liability), this cannot fairly be said to represent a loss to him, which bars plaintiffs. In brief, while no doubt there was negligence connected with the payment, and Mr. Johnson’s letter may have misled the trust company into its carelessness, yet there is no evidence the legacy was intentionally paid without regard to, or waiving the controlling facts. Plaintiffs derived no benefit from the transaction, and no facts appear which, in equity and good conscience, either entitle defendant to retain the money or estop plaintiffs from recovery; the court helow erred in ruling otherwise. Appellee attempts to invoke another matter of defense by raising the objection that plaintiffs are not formally named in the record as executors, and, since there has been no surcharge of the $5,000, they have not suffered a loss and cannot recover. As to this, it is sufficient to say the record does not show whether or not plaintiffs have been surcharged; and, finally, no such defense as here attempted having been raised in the affidavit of defense, or, so far as the record indicates, at trial, it will not be considered by us. We have examined all the authorities cited — upon what constitutes mistakes of law and fact — and find none of them in conflict with our present decision that this case presents a mistake of fact. The first three assignments of error are sustained; the judgment is reversed and the record is remitted to the court below with directions to forthwith enter judgment for plaintiffs.

Opinion by Mr. Justice Kephart, Plaintiff’s Misband died September 10, 1918, as tbe result of an accident received November 24, 1917. Tbe chairman of tbe Workmen’s Compensation Board states in bis opinion that claimant wrote to tbe board about presenting a claim against tbe defendant September 6, 1919. An answer was received by her, September 9, 1919, from an officer of tbe board, stating, “I am sending you blank form of claim petition, which must be mailed to Harrisburg on September 10,1919.” This was one year after tbe death of her husband. Tbe letter contained an agreement for compensation, not a claim petition; and this agreement was sent to Harrisburg by registered mail September 9, 1919, registry receipt as of that date being in evidence. It was not received by tbe board until September 11th, one day after tbe year bad expired. This agreement was referred to defendant for execution, but was returned with a denial of liability; thereafter tbe formal claim petition was filed, based on facts contained in tbe compensation agreement in tbe board’s possession. Article III, section 315, of tbe Workmen’s Compensation Act of June 2, 1915, P. L. 736, 748, provides, “In cases of death all claims for compensation shall be forever barred, unless, within one year after tbe death, tbe parties shall have agreed upon tbe compensation under this article; or unless, within one year after tbe death, one of tbe parties shall have filed a petition as provided in article IV hereof.” Article IV, section 402, P. L. 750: “All proceedings before tbe board or any referee, and all appeals to the board, shall be instituted by petition addressed to the board. All petitions shall be in writing and in the form prescribed by the board.” An examination of the compensation agreement and the claim petition shows the facts necessary to each, with unimportant exceptions, are alike. It is not material in what form the claim petition appears, as long as it presents a demand or claim for an injury that, on the facts as stated, appears to be compensable. Filing the agreement, then, was a substantial compliance with section 402. The letter from the board directed the petition to be mailed not later than September 10th. This was the last day it could be filed with the board, and, of course, the direction as to mailing was a misstatement. Where a person is unintentionally deceived as to his rights by one who has authority to act in the premises, courts will not, if it is possible to prevent it, permit such deception to work an injury to the innocent party. Here the widow was misled by the statement of the board’s officer. She, no doubt, could have had the paper delivered in Harrisburg on the date named, had she known that was necessary. While the governing sections are mandatory, and she is presumed to know the law, we have held, where a party has been prevented from doing an act through fraud or circumstances that amount to fraud, the court might extend the time within which to do the act: Wise v. Cambridge Springs Borough, 262 Pa. 139, 144. But we need not rest the case on this conclusion. The time limit in which claims might be filed was placed in the act not only to produce a uniform practice, but to enable employers to know the period of time they could be called upon to respond for just claims, so that they might not be constantly expecting stale claims of doubtful merit. The compensation act, then, contemplated the board would come in contact with legal claimants from every section of the Commonwealth, and that certain agencies of the government (mail service), as the agent of all parties, would, in reason, be used to facilitate this end, to carry out the purposes and directions of the act. It was not intended to cut out meritorious claims by harsh rulings as to the manner of filing. Claimant’s husband was an engineer who had worked for this company for thirty years or more; it is now argued his widow is not entitled to compensation because she did as the compensation board told her when she filed her claim too late, forgetting the fact that the compensation board’s knowledge and notice of the claim is the important thing to establish, and bears strongly on the merit of her position. It is to be noted she sent her claim petition by registered letter on next to the last day, and, although it was not received by the board until the day following the last day, the date of sending, the manner by which it was sent and the fact of its receipt within the ordinary time required to carry a letter to its destination, though after the time limit, — these circumstances combined cause the receipt to be referred back to the date when the petition was deposited in the mail, and to be considered as delivered on that date, it being within the year. A delivery of a claim petition to the United States mails, on the last day to be filed or the day before, duly stamped, properly addressed, sent by registered mail, followed by a receipt by the compensation board within the time usually required to carry a letter to its destination, — these combined circumstances constitute a delivery of the petition when it was deposited in the mails. The actual receipt at the home office within the time mentioned is not absolutely necessary to complete the delivery; the law must be reasonably construed. Attention is called to parallel reasoning in Giordano v. St. Paul Fire and Marine Ins. Co., 66 Pa. Superior Ct. 575, 578, where Judge Henderson correctly states the law as to notice of loss by insurance. The order of the court below is affirmed with a procedendo ; costs to be paid by appellant.

Opinion by Mr. Justice Sadler, The Sullivan Pocahontas Coal Company was the holder of more than sixty per cent of the stock of seven mining concerns located in West Virginia. To carry out its operation large financial resources were required, and to raise the necessary funds a mortgage was executed with bonds to the amount of $1,200,000, in which the Union Trust Company of Pittsburgh was named as trustee, the stock of the subsidiary companies and other' assets being deposited as security. The mortgagor covenanted that it would keep in good repair the various properties, and provide for the payment of all labor claims, taxes, insurance and other charges. A brokerage firm purchased one-half of the bonds, and agreed to take the remaining portion on condition that $60,000 be sold at 85% of the face value, the proceeds, amounting to $51,000 to be placed in trust to insure the payment of federal taxes covering the years 1917 to 1921, which had been assessed, or which the government might find to be due for the period mentioned. This understanding was embodied in a letter addressed to the proposed purchaser of the securities, and made a part of the trust agreement in controversy. The contract was signed by the parties, approved by the buyer, and the fund contemplated was handed over. Under the terms of the trust, the money was to be appropriated solely for the payment of taxes as set forth, the amounts when fixed by the federal authorities to be paid to the coal company only on certificates, sworn to by its president and vice-president, showing that the amount asked to be withdrawn was necessary to pay the assessment made by the government, and to be used for no other purpose. The sum of $28,215.95 was so transferred and taxes satisfied pro tanto. A written request was made, after the present attachment was issued, asking the trustee to remit $21,819.81 directly to the internal revenue collector in West Virginia. There still -remains due for the years 1917 to 1921 a sum greater than the balance in the hands of the trustee. The coal company had no interest in the fund until all taxes were satisfied, nor any right to receive any portion except in trust for transmission to the collecting agents. It did have the right to the interest, which might accrue before withdrawal, on the balance remaining in the hands of the trustee, and this amounted to $3,217.52 at the time when this proceeding was instituted. The agreement provided for the termination of the trust on April 1, 1926, in case all taxes were at that time adjusted and paid. It also provided that if the exact amounts due had not then been ascertained, and waivers of objection had been filed by the subsidiary companies with the federal authorities, the time of its operation should be extended. This condition occurred, and by agreement, in which the purchasers of the bonds, Moore, Leonard & Lynch, were parties, setting forth that the unpaid taxes are greatly in excess of the balance in the trust fund, it was stipulated that the whole remaining sum be retained by the trustee for the purpose of liquidating, as far as possible, the amounts remaining unsatisfied. Austin-Nichols & Co., the present plaintiff, and a creditor of the. defendant, caused a writ of foreign attachment to issue, summoning the Union Trust Company as garnishee. Judgment was entered against the coal company for $28,511.80, and, after the issuance of a preliminary sci. fa., the trustee was called upon to answer the interrogatories propounded. In so doing, the facts as already detailed were narrated. It appeared that defendant had a checking account of $572.80 in the bank, and interest on the fund in question payable directly to the coal company of $3,217.52. As to the re maining portion of the $51,000, held for payment of taxes, any right of the defendant therein was denied. The plaintiff entered a rule for judgment for the total of all three items, and as to the first two, amounting to $3,790.02, it was made absolute, but discharged as to the remainder of the claim. From this order, the plaintiff has appealed, insisting that the fund of $51,000 was really for the benefit of the coal company, which could have secured the balance and appropriated it to other uses than those named in the trust agreement, since it was in reality established for the benefit of the settlor. Further, it was urged that the trust was passive, and that no one had any interest therein except defendant, since the rights established thereunder could not be enforced by the purchaser of the bonds, though they were bought with the understanding that the specific money would be set aside to protect against possible prior claims of the government. When a creditor makes use of attachment process, he thereby treats the contract by which the garnishee acquired possession of the fund in his hands as valid: Vincent v. Watson, 18 Pa. 96. He cannot seize the property of a third party though temporarily held by the debtor (DeRoy v. Richards, 8 Pa. Superior Ct. 119), or moneys held by him for another: 39 Cyc. 71; 28 C. J. 117. His rights cannot rise higher than those which defendant had against the garnishee, and the liability of the latter is measured by his responsibility in case the debt- or himself had brought an action to recover: 28 C. J. 92; Reichner v. Reichner, 237 Pa. 540; Riddle v. Etting, 32 Pa. 412; Howard Co. v. Hughes, 12 Pa. Superior Ct. 311; Benedict & Eberle Co. v. Hollman, 68 Pa. Superior Ct. 155. If, therefore, the latter has no cause of action, the attachment must fall: Lane’s App., 105 Pa. 49. Likewise, if there has been a prior valid, legal assignment of the amount due, judgment cannot be entered against the garnishee (Hemphill v. Yerkes, 132 Pa. 545; Smith v. Keener, 270 Pa. 578; Sturgeon Bay Bank v. McLaugh lin, 63 Pa. Superior Ct. 588), nor can there be where an equitable transfer of title appears (Patten v. Wilson, 34 Pa. 299; Barnes v. Alexander, 232 U. S. 117), even though no notice of ownership was given to the holder of the fund: Jarecki Mfg. Co. v. Hart Bros., 5 Pa. Superior Ct. 422. The same principle applies when funds are held on special deposit, or in trust for the benefit of third parties (Burger v. Burger, 135 Pa. 499; Farmers & Mechanics Bank v. King, 57 Pa. 202; B. & O. R. R. Co. v. Kensington Land Co., 175 Pa. 95), though the settlor cannot put aside assets for his own use so as to deprive creditors of their rights therein: Nolan v. Nolan, 218 Pa. 135; Patrick v. Bingaman, 2 Pa. Superior Ct. 113. Where funds have been deposited to be used for the payment of specific claims there is an appropriation which places them beyond the grasp of the one attempting to attach: Sharpless v. Welsh, 4 Dall. 279; Watson v. Bagaley, 12 Pa. 164; Johnston v. Root Mfg. Co., 241 U. S. 160; Smith v. Sanborn State Bank, 147 Iowa 640, 126 N. W. 779. And the mere power to revoke (Watson v. Bagaley, supra), or the retention of the right to the balance remaining after the payment of the claims provided for (Vincent v. Watson, 18 Pa. 96), will not affect the status of the parties. An operative trust is one which imposes upon the one named as the depositary the duty of taking measures to protect the property in his hands: 39 Cyc. 30. A simple trust gives the beneficiary the right to possession and control, and power of disposal for his own use, while a special one confers no more than the right to enforce in equity the intention of the settlor to the extent of his interest: Vaux v. Parke, 7 W. & S. 19. “Whenever it is necessary for the accomplishment of any object of the creator of a trust that the legal estate should remain in the trustee, then the trust is a special active one”: Gourley’s Est., 238 Pa. 62, 64. And this is true, though the discretion to be exercised is but slight: Hemphill’s Est., 180 Pa. 95. If there be a valid deposit created for the benefit of a third party, the cestui que trust has a standing to- enforce the obligation- assumed: Willis v. Curtze, 203 Pa. 111; Dolph v. Cross, 153 Iowa 289, 133 N. W. 669. The latter may demand that there be a proper administration of the fund (Fallon’s App., 42 Pa. 235; 28 C. J. 120), and the trustee must make distribution in the manner agreed upon: Benedict & Eberle Co. v. Hollinan, 68 Pa. Superior Ct. 155. Whether a fund is to be treated as held in trust for a special purpose, or considered merely as a deposit, creating the relation of debtor and creditor, depends on the circumstances of each particular case. If the facts disclose the existence of the former relation, the attaching creditor has no enforceable claim, unless there be a balance remaining after the agreed obligation has been performed, and then only as to this surplus. A placing of securities in. escrow for the benefit of a third party will protect the latter as against creditors (Sexton v. Kessler, 225 U. S. 90) ; so will the express appropriation of a fund to a certain use, as in the case of moneys deposited solely to pay dividends declared by a corporation, though the checks for the stockholders are drawn by the company (Interborough Case, 288 Fed. R. 334); and the same is true where the money has been clearly set aside for the payment of bond coupons: Rogers Locomotive Works v. Kelley, 88 N. Y. 234.. The contrary, however, has been held where the amount was deposited in a coupon account, subject to be withdrawn by the company at its own will, with the power to use for any corporate purpose desired. In such case the relation is merely that of debtor and creditor: Erb v. Banco di Napoli, 243 N. Y. 45. The distinction between a holding-in trust and an ordinary deposit, in such situations, is clearly pointed out in the Interborough Case, supra, where a careful discussion of the question will be found. In the instant case, the deposit was made for the purpose of securing the payment of back taxes, or those which, might be assessed on a revision of the returns for the years 1917 to 1921, and, in consideration of the purchase of the bonds, so that the lien thereof should be protected against prior claims. No beneficial interest was retained in the coal company, except as to interest accruing on balances, until the tax claims were satisfied. It could not secure the corpus except for the purpose of liquidating the taxes levied, and then only on certificates found by the trustee to be in compliance with the terms of the agreement, in which the purchaser of the bonds had joined by giving its approval, wherein it was provided, inter alia, that the funds should be used “for said purpose and not otherwise.” The money paid, excepting interest, could not be applied to general corporate purposes, but alone for the object specified, and in so doing the coal company acted in a trust capacity as agent for the depositary. The latter was obliged to make payment to the extent of the fund in its hands, when taxes became due, and this duty could, have been enforced by the purchaser of the bonds in order that his interests be protected against prior liens, and the funds were not subject to attachment by general creditors. It was bound to keep the money at interest, and invest the same “in obligations of the United States or any such other securities as may be designated by the company [trustee] and approved by your firm [the purchasers],” and a different disposition of that accruing and the principal was provided for. The trustee was required to see that the money went to the coal company only on the submission of proper sworn certificates showing the amount payable for taxes, and for no other purpose, and was liable if it acted negligently in so doing, except as relieved by the provisions of the agreement, when it was shown to have acted in good faith. We cannot agree with the appellant that the deposit was for the benefit of the settlor, and that it could apply any moneys which it saw fit to withdraw for its general purposes. It was only in case of a bal anee remaining after all government claims had been satisfied that this was permissible, and the record discloses there never was, nor will be, any surplus which could be so devoted. It cannot be said that the trust established was passive, and therefore executed, nor that the contract, made while the coal company was solvent, was within the inhibition of the Fraudulent Conveyance Act of 1921 (May 21st, P. L. 1045). The agreement was entered into for a valuable consideration, and the rights of third parties have intervened, which are entitled to protection. In many aspects the case of Willis v. Curtze, 203 Pa. 111, is similar to the one at bar. There, the fund was paid to the garnishee, as trustee, with the obligation to pay therefrom for materials and labor required in the construction of a street railway. Though not made clear by the case as reported, the record disclosed that the payments were to be made by the trustee on orders of Lawrence, the president of the contracting company, for work and material actually used, or in payment of drafts for needed supplies. What was said by Justice Fell, in part, at page 113, is pertinent here: “The fund attached was the price of bonds purchased of a contractor who was constructing an electric railway, and who had received them in part payment under the terms of his contract. The road was unfinished and the purchaser, who owned a number of bonds, was unwilling to buy more unless assured that the road would be completed. In order better to secure the investment, it was arranged between these parties that the price of the bonds should, be deposited with the garnishee in trust, and by him used to pay for materials and labor necessary for the completion of the road, as the work progressed. The money was so used. Neither at the time of the service of the attachment, nor at any time thereafter, could the contractor have withdrawn this fund. It was pledged for a specific purpose, and the purchaser of the bonds had a vested right as to its appropriation under the agreement. The plaintiff, whose judgment was for a debt contracted before the purchase of the bonds, stood in the same position as the contractor.” See also, B. & O. R. R. Co. v. Kensington Land Company, supra. A careful examination of the record convinces us that the assignments of error should be overruled. The order of the court below is affirmed at the cost of appellant.

Opinion by Me. Justice Kephart, The county commissioners, as a board of tax revision, made an assessment of plaintiff’s property in the Borough of Tamaqua at $3,596,188 for the triennial, beginning 1922. Plaintiff appealed, but meanwhile the commissioners certified the assessment to the school district of Tamaqua. On this valuation, it levied a tax of eight mills for the year 1922. Plaintiff successfully prosecuted its appeal from the assessment. Pending this appeal, which was not determined for more than two years, plaintiff, not wishing to pay the full levy of eight mills on the increased valuation or the increased levy of twenty mills for 1924, elected on its own account to pay an annual school tax, which in three years amounted to $26,290.05. The tax actually paid was computed on a probable valuation of approximately $1,000,000. Some months after the last of these payments was made, or February 5, 1925, the court below, reduced the assessment of plaintiff’s property to $468,100. On this basis the school tax payable for these years was $17,742.30, an overpayment of $8,547.75. Plaintiff, in 1928, sued to recover this excess in taxes. Defendant filed a counterclaim to recover from plaintiff the sum of $88,986.96, being the balance of school taxes levied for the three years on the high valuation which plaintiff failed to pay. The jury found for the plaintiff in the sum of $8,547.75, with interest from September 21,1923. Defendant appeals. Plaintiff’s claim is based on the Act of April 19,1889, P. L. 37, which requires that when an appeal is taken from an assessment of taxes the owner shall pay on the assessment made, regardless of the appeal. The act reads: “Provided, however, That the said appeal shall not prevent the .collection of the taxes complained of, but in case the same shall be reduced, then the excess shall be returned to the person or persons who shall have paid the same.” While many assignments of error are presented, they will be disposed of in considering the several issues involved. The constitutionality of the Act of 1889, P. L. 37, is no longer open to question; the proviso above quoted was held to be constitutional in Kaemmerling v. New Castle Twp. School Dist., 297 Pa. 44. Appellant earnestly argues that whatever taxes were paid by plaintiff for the years 1922 and 1923, were voluntary payments on the basis of the valuation for the preceding year, 1921, which was the same as that for the triennial assessment of 1919. The payments were made by the plaintiff in the amounts given above to the collector for the Borough of Tamaqua. He gave the plaintiff receipts stating the payments were, in each case, on account of the school tax for the year in question, 1922 and 1923. In fact, defendant in its counterclaim stated the payments were on account of the taxes levied for 1922 and 1923. The fact that plaintiff set up its own valuation on which to compute the tax for these years would not make the payments any the less on account of the taxes due for those years. When a disputed assessment is finally determined it relates back to the time when under the law it was required to be made, and payment of taxes assessed during that period will be presumed to be made on such valuation. That the valuation was still on appeal and not finally determined is immaterial. The fact that plaintiff paid the taxes to the collector of taxes instead of directly to the school district is of no consequence. He was merely their legal agent; the tax was levied by the school district, and the money finally reached their hands. The collector was merely discharging the functions of his office. The action was properly against the school district. Appellant’s contention that there can be no recovery of the excess, since the payments were admittedly voluntary, is of no merit. Undoubtedly, thé well established rule in this State is that a voluntary payment of taxes to the public authorities, without any duress, threats, or misstatements on the part of the latter, or protest and notice of intention to reclaim on the part of the taxpayer, precludes subsequent recovery of any overpayment : Shenango Furnace Co. v. Fairfield Twp., 229 Pa. 357; McCrickart v. Pittsburgh, 88 Pa. 133. If the payment was a voluntary one, it may not be recovered unless a statute so provides: Investor’s Realty Co. v. Harrisburg, 281 Pa. 200. But here the statute does so provide. It declares that in case an assessment of property shall, on appeal, be reduced, “then the excess shall be returned to the person or persons who shall have paid the same.” Such a provision would be useless and would effect no change in the existing law if it were intended to apply only in case the payment of the excess tax has been previously compelled by a resort to legal methods, which, according to the appellant, is the only sense in which the tax can have been “collected.” If such had been the procedure, plaintiff could have recovered the illegal excess without the aid of the statute. But, as remarked in the opinion of the lower court, the statute says nothing about compulsion or protest, and, since it provides that the taxes complained of may be collected while an appeal is pending, it is plain that any attempt to prevent collection would be unavailing. The statute in plain and unequivocal terms affords the taxpayer complete protection. If, pending appeal, the latter makes payment of the whole or any part of the levy in excess of the amount payable under a later readjusted assessment, the statute permits him to recover such excess. As stated in Quemahoning Coal Co. v. Jenner Twp., 83 Pa. Superior Ct. 577, 583, “an appeal to the common pleas is not a supersedeas and does not prevent either the levy or the collection of the tax. If the valuation is reduced, the excess of taxes is returned to the person who paid them: Frick Coke Co. v. Mount Pleasant Twp., 222 Pa. 451.” Appellant further argues that when plaintiff made its voluntary payments on account of the levies, while the appeal was pending, it lost all rights under that appeal, and the original assessment then became the final valuation by which plaintiff was bound. This contention wholly disregards the effect of the proviso, which was inserted as a financial protection to the district in meeting current expenses and included a voluntary as well as a forced payment. It could not be urged that payment by force would waive the rights on appeal any more than would a voluntary payment destroy plaintiff’s right to recover. Certainly there was no voluntary ■waiver, for plaintiff voluntarily paid only a small portion of the entire levy and could not more plainly have intended to assert its full right of recovery when the appeal should be decided. Defendant also seeks to overthrow the judgment by the claim alleged to have been set up in defendant’s counterclaim. The lower court disposed of the objection of plaintiff’s failure to reply within fifteen days to certain new matter in its opinion by holding that the act declares only allegations of fact are admitted and not conclusions of law. See section 1, Act of April 22, 1929, P. L. 627. The new matter relied on by defendant was a statement of the legal grounds upon which the defense rested. Such statements required no answer. One further question raised in argument remains to be determined; whether or not plaintiff is entitled to interest on the amount paid in excess of the proper levy. The judgment as it now stands is for the total excess payment, $8,547.75, with interest at 6% from September 21, 1923, the date of payment by plaintiff, the whole amounting to $12,137.80. The precise point does not appear to have been raised before in this court, and we are thus free to deal with it unhampered by precedent. It is unnecessary to review the wealth of conflicting authorities in other jurisdictions; these are very fully summarized in a recent note in 57 American Law Reports, page 357. The weight of authority appears to be that where the taxpayer is entitled to a refund on an excess payment of taxes, whether such right accrues by virtue of statute or not, the taxpayer is entitled to interest on the refund if no statute or public policy militates against it. Such is the law in the United States courts (as to governmental agencies: Nat. Volunteer Home v. Parrish, 229 U. S. 494), in New York (Matter of O’Berry, 179 N. Y. 285), and in Massachusetts (Boott Cotton Mills v. Lowell, 159 Mass. 383), as well as several other states. See Fidelity Title & Trust Co. v. City of Pittsburgh, 63 Pitts. L. J. 576. With this view we agree. The question remains as to the period during which interest should run. Here again the balance of authority and reason concur in holding that interest should be allowed on the refund due the taxpayer only from the date of the demand by the taxpayer upon the authorities for repayment. As said in Boott Cotton Mills v. Lowell, supra, “although the assessors may have erred in judgment, the city or town has not been at fault in the assessment or collection of the tax, nor in the retention of the money paid; it is not compelled to make the reimbursement because of its default, but because for that purpose it is the designated instrument of the government....... The same considerations negative any obligation on the part of the municipality to make reimbursement until demand therefor is made. The sums received into the treasury are not earmarked. They are the property of the municipality, and it is under no obligation to the taxpayer until his abatement is allowed. ...... It follows that the municipality is in no default in not making reimbursement until demand; and, as interest is not given by the statute which devolves upon the city or town the duty to make reimbursement, only such interest can be included in the judgment as is given for the improper detention of the money, which would not be until after a demand.” In that case the taxpayer paid under protest, but the same principle should apply where the payment, though voluntary, could be compelled and hence protest would be unavailing. In the case at bar, the school district would have been within its statutory rights in collecting the entire tax and would have been under no obligation to repay the excess until the final valuation decree of February 5,1925. It was not until then that plaintiff’s right accrued, and the public funds should not be penalized by charging interest upon the amount due until plaintiff made a formal demand upon the proper authorities, giving notice that it intended to exercise its right. It appears from the record, in the testimony of a witness for the plaintiff, that plaintiff, after the final adjudication of the assessment, made several demands upon defendant school district for repayment of the excess, the first being a letter written on July 1, 1925. It follows that the judgment should have been for the principal sum due plaintiff, $8,547.75, with interest at 6% from July 1, 1925. With this modification, the judgment of the court below will be affirmed, and judgment will be entered for plaintiff here for the amount found to be due as stated above. Judgment affirmed, as modified.

Opinion by Mr. Justice Allen M. Stearne, The appellants — intervenors—appeal from the decree of the court of common pleas of Montgomery County setting aside the decision of the Zoning Board of Adjustment of Springfield ToAvnship Avherein the board refused to grant a variance from the terms and provisions of the Springfield Township Zoning Ordinance of 1940. The appellee, Adolph Luther Lindquist, is the equitable OAvner of a lot and building situate on the northeasterly corner of Bethlehem Pike and HaAVS Lane in Springfield Township. He purchased the property Avith the intent to install and operate therein boAvling alleys. At the time appellee purchased the building it Avas being used as an automobile sales agency, repair and body and paint shop. It had previously been used as a knitting mill, packaging plant and auto agency but was vacant for extended periods. The building is a large, well-built brick and hollow tile and cement structure containing approximately seven thousand square feet of usable floor space. Appellants applied to the board for a variance, which was refused. The township zoning ordinance establishes Business I and Business II districts and outlines permitted uses in each district. The building in question is located in a Business I district. A bowling alley is not expressly authorized therein by way of special exception or otherwise. The use of a bowling alley is specifically authorized by the ordinance in a Business II district if an exception is granted by the Board. Section 1306 (2) of the ordinance prohibits the board from authorizing a use not expressly permitted in the district in which the property is located. The zoning board in refusing the variance ruled, and the present appellants rely upon such ruling, that it was without authority to grant a variance; that the township ordinance vested such power only in the township commissioners ; that the limit of the board’s power is to pass on special exceptions provided for by the ordinance. This contention earnestly advanced by appellants is in direct conflict with the legislative act authorizing the creation of the Board of Adjustment. The pertinent provisions of the Act of June 24, 1931 P. L. 1206, Article XXXI, Section 3107, as amended, 53 PS 19092-3107, are as follows: “The board of adjustment shall have the following powers: ... (2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; (3) 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 enforcement 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.” Appellants seek to nullify the board’s power to grant a variancé under subparagraph (3) and would confine it to power to grant special exceptions provided for in subparagraph (2). Such an interpretation would place the ordinance in direct conflict with the Act of Assembly. The board, established pursuant to statute, cannot refuse to perform the functions prescribed therein. The appellants rely on Jennings’ Appeal, 330 Pa. 154, 198 A. 621; Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A. 2d 744; Ventresca v. Exley et al., 358 Pa. 98, 56 A. 2d 210; Hasley’s Appeal, 151 Pa. Superior Ct. 192, 30 A. 2d 187, for the proposition that the board may not allow, by variance, a use in a district in which such use is expressly or impliedly prohibited. President Judge Knight correctly analyzed these cases as follows: “What they (the cases) . . . decide is that the board of adjustment has no power to grant a variance unless the conditions specified by the enabling Act and the ordinance, exist, namely; special conditions, unnecessary hardship and etc., and when these conditions do not exist, the only remedy of an applicant for a variance is through legislative action. All of the above cases were decided on the theory that the special conditions did not exist.” See also Elkins Park Improvement Association Zoning Case, 361 Pa. 322, 64 A. 2d 783. The board had the duty to consider the “specific case” of the appellee and determine whether “special conditions” warranted the granting of a variance. Appellee was entitled to a judicially exercised discretion on granting or refusing his application. In Imperial Asphalt Corporation of Pennsylvania Zoning Case, 359 Pa. 402, 59 A. 2d 121, Mr. Justice Linn stated, p. 405: “What were the ‘grounds of the decision’ which moved the zoning authorities? Neither the officer nor the board gave any facts pertinent and material in any inquiry into possible reasons for the conclusion reached. They should have made from the evidence a statement of facts sufficient to show that a judicially exercised discretion, applied to the facts, justified the action taken; a property owner’s constitutional right to the use of his property is not satisfied by arbitrary refusal. Nor is it sufficient merely to say the refusal resulted ‘after due consideration.’ Enough must be stated to enable the court to see that there was due consideration and a weighing of evidence in its legal relations. It is not sufficient to say, as the board did in its return to common pleas, that the change is prohibited . . ., or that appellant is not entitled to a variance . . ., or that the variance ‘would be contrary to the public interest’. . ., or that the board reached ‘a correct and just decision’. . ., without something to show on what those legal conclusions are based. It must appear that the constitutional right to the use of property has not been infringed by the zoning regulation : Compare White’s Appeal, 85 Pa. Superior Ct. 502; Taylor v. Haverford Twp., 299 Pa. 402, 414, 149 A. 639; Gilfillan’s Permit, 291 Pa. 358, 140 A. 136. There should be sufficient discussion to enable the court, on appeal, to see that the officer and board appreciated the legal questions raised by the facts.” It is not necessary herein to review the merits of appellee’s application for a variance. The board in addition to its clear error in law as outlined above admittedly placed great weight on the fact that “there were too many people who objected.” It is clear that a board of adjustment does not properly exercise its discretion if. it considers the number of protestants rather than the nature and quality of their objection. Cf. Eubank v. City of Richmond, 226 U. S. 137, 33 S. Ct. 76, 57 L. Ed. 156. In Perelman et al. v. Yeadon Borough Board of Adjustment et al., 144 Pa. Superior Ct. 5, 18 A. 2d 438, it was observed that the burden rests upon the petitioner upon appeal to show affirmatively that the board abused its discretion, as, for example, there was not substantial evidence to support its findings or that its ruling was erroneous as a matter of law. If the board’s determination is shown to be arbitrary and contrary to the weight of the evidence, the court is authorized and should make its own ruling: Gilfillan’s Permit, 291 Pa. 358, 140 A. 136; Junge’s Appeal (No. 1), 89 Pa. Superior Ct. 543. The board having erred in its application of law the court below properly considered the matter on the merits. The court below stated: “. . . the Board misinterpreted the law as to their power to grant a variance, and no one can say ;just what influence the misinterpretation of the law may ha,ve had on their decision on the merits.” Our review of the court’s findings is to determine whether the record is free from mistake of law: See Veltri Zoning Case, 355 Pa. 135, 49 A. 2d 369; Triolo et al. v. Exley et al., 358 Pa. 555, 57 A. 2d 878; Imperial Asphalt Corporation of Pennsylvania Zoning Case, 359 Pa. 402, 405, 59 A. 2d 121. As there was substantial evidence in support of the lower court’s determination we will not disturb its findings: Berberian Zoning Appeal, 351 Pa. 475, 478, 41 A. 2d 670. The order of the court below is affirmed; costs to be paid by appellants.

OPINION OF THE COURT ROBERTS, Justice. Appellants Harry Schreiber, Schreiber Transport, Inc. (Schreiber Transport), and Sullivan Lines, Inc. (Sullivan Lines), obtained writs of foreign attachment direct ing the sheriff to sequester an irrevocable letter of credit in favor of appellee, Republic Intermodal Corporation (R.I.C.), held by Union National Bank (Union Bank) at its Pittsburgh office. On February 10, 1976, Judge Smith of the Court of Common Pleas of Allegheny County dissolved the two writs of attachment, holding that the procedures governing foreign attachment in Pennsylvania violate constitutional due process. U.S. Const, amend. XIV. The same day appellants presented to Judge Louik of the same court a petition for an order for a writ of foreign attachment conditioned upon following procedures which would meet the requirements of due process. Judge Louik refused to grant the petition. Appellants have appealed the orders of Judge Smith and Judge Louik. We affirm. Appellants assert that Judge Smith erred in dissolving the attachments because he gave retroactive effect to Jonnet v. Dollar Savings Bank, 530 F.2d 1123 (3d Cir. 1976), which declared Pennsylvania’s Rules of Civil Procedure relating to writs of foreign attachment unconstitutional. Alternatively, they argue that Judge Louik erred in refusing to issue an order for a writ of foreign attachment which would avoid the procedural flaws in the existing rules. We hold that: (1) Jonnet did not establish a new principle of law which might be given non-retrospective effect; and (2) in the absence of any statute or rules of court which satisfy constitutional standards, foreign attachment is not presently available in Pennsylvania. Therefore, Judge Smith properly dissolved appellants’ writs of foreign attachment and Judge Louik properly denied their petition for the writ. I This dispute arises from a contract, entered into on August 15, 1975, by appellant Harry Schreiber, an individual and Pennsylvania resident, and appellee, R.I.C., a New York corporation not registered in Pennsylvania. Schreiber agreed to pay $1,465,000 for all the capital stock of R.I.C.’s wholly-owned subsidiary Sullivan Lines. Schreiber subsequently assigned his rights under the contract to Schreiber Transport, a Pennsylvania corporation. At the closing, Schreiber paid $615,000 to R.I.C. with $550,000 of the balance secured by an irrevocable letter of credit in favor of R.I.C. The letter of credit was held by garnishee, Union Bank, at its Pittsburgh office. After an audit, appellants alleged that R.I.C. had breached the contract. Appellants also alleged that R.I. C. was contemplating liquidation to defraud appellants. In September, 1975, appellants filed suit in New York against R.I.C., seeking rescission or reformation of the contract and damages. In October, 1975, the New York trial court enjoined R.I.C. from drawing upon the letter of credit, pending trial. After a two month trial, the court held that appellants were .entitled to $42,124.00 in damages, but denied rescission or reformation. The court vacated the preliminary injunction which enjoined R.I.C.’s resort to the letter of credit. Before the court’s decision was reduced to a formal judgment, appellants instituted the present actions in Pennsylvania. On December 18, 1975, appellants filed a praecipe for a writ of foreign attachment, which directed the Sheriff of Allegheny County to seize the letter of credit held by Union Bank. The complaint in assumpsit, filed December 22, 1975, named R.I.C. as defendant, alleged fraud and breach of warranties, and requested damages in the amount of $1,829,413. Appellants amended the complaint to name as a defendant appellee Lazard Freres, a New York investment banking company. Appellants alleged that R.I.C. was an “alter ego” of Lazard Freres. On January 20, 1975, appellant Sullivan Lines, as sole plaintiff, filed another praecipe for a writ of foreign attachment, again directing seizure of the same letter of credit. The complaint, filed January 22, 1976, named as defendants R.I.C. and its wholly-owned subsidiary, appellee Doris Leasing Company, a New York corporation. Appellant Sullivan Lines alleged breach of a January, 1975, lease agreement between Sullivan Lines and Doris Leasing Company, and requested damages of $524,885. Appellees filed petitions to dissolve the attachments. The petitions were granted on February 10, 1976, by Judge Smith, who found that Pennsylvania rules for obtaining writs of foreign attachment violated the due process clause of the fourteenth amendment of the United States Constitution. Appellants then prepared a petition for a writ of foreign attachment which they presented to Judge Louik the same day. The petition requested that writs of foreign attachment be issued in a manner consistent with the strictures of the due process clause. After indicating that he would not grant the requested writs, Judge Louik granted a temporary restraining order enjoining Union Bank from honoring any drafts on the letter of credit. Judge Louik treated appellants’ petition as a request for a preliminary injunction. On February 13, 1976, he refused to issue a preliminary injunction and vacated the temporary restraining order. These appeals followed. II Appellants first claim that Judge Smith erred by giving retroactive application to Jonnet v. Dollar Savings Bank, supra. Appellants concede that any attachment issued pursuant to the Pennsylvania rules after January 27, 1976, the filing date of Jonnet, must be dissolved. As the instant attachments were issued December 18, 1975 and January 20, 1976, appellants insist that Judge Smith’s reliance on Jonnet amounts to an erroneous retrospective application of that decision. We cannot agree. Under the Pennsylvania rules, a foreign attachment permitted attachment of a non-resident defendant’s nonexempt property upon any cause of action in which relief sought included a judgment or decree for the payment of money. Pa.R.C.P. 1252. Upon filing of a praecipe, the prothonotary automatically issued the writ. Pa.R.C.P. 1255. The attachment could precede the filing of the complaint by as much as five days. Pa.R.C.P. 1265. There was no requirement that the plaintiff notify the defendant of either the attachment or the complaint; this responsibility was delegated to the garnishee. Pa. R.C.P. 1267. Once issued, the attachment was not dissolved by the general appearance of the defendant. Pa. R.C.P. 1272. Rather, the attachment could be dissolved prior to judgment only if the defendant posted an adequate bond or other security, or if the plaintiff failed to prosecute the case with due diligence. Id. In Jonnet, the United States Court of Appeals for the Third Circuit held that these rules violated procedural due process for the following reasons: (1) there was no requirement that a plaintiff file a sworn document stating facts upon which the cause of action was predicated; (2) the seizure process was entirely ministerial with no exercise of judgment by an official competent to determine whether there were facts justifying attachment or whether a valid claim had been stated; (3) the rules provided no machinery to indemnify a defendant for damages caused by wrongful attachment; (4) there were no means for a defendant to promptly contest the attachment; and (5) there were no procedures to allow the defendant to dissolve the attachment when the defendant made provision to protect the plaintiff’s interest. 530 F.2d at 1129-30. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) ; Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Note, “Specifying the Procedure Required by Due Process Toward Limits on the Use of Interest Balancing,” 88 Harv.L.Rev. 1510 (1975) ; Note, “Quasi in Rem Jurisdiction and Due Process Requirements,” 82 Yale L.J. 1023 (1973). In dissolving appellants’ writs of attachment, Judge Smith announced that he was relying upon the reasoning of Jonnet and the decisions in McFadden v. McShane, Inc., (W.D.Pa. No. 74-1090, filed February 2, 1976), and Radakovich v. Weisman, 124 P.L.J. 63 (C.P. 1975), which also held Pennsylvania’s foreign attachment procedures unconstitutional. Appellants’ claim must fail. The decision in Jonnet holding that Pennsylvania’s rules governing foreign attachment are unconstitutional did not establish a new principle of law which might be applied prospectively only; i.e., to writs issued after the date of decision. In Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the United States Supreme Court stated that the threshold test in deciding whether a new decision might be given prospective application only is whether the decision establishes a new principle of law, either by overruling clear past precedent or by deciding an issue of first impression whose resolution was not clearly foreshadowed. 404 U.S. at 106, 92 S.Ct. at 355. Only such a new principle of law may qualify for nonretrospective application. The decision in Jonnet does not meet this initial test, for the constitutional defects in Pennsylvania’s rules governing foreign attachment were patent in light of recent precedents of the United States Supreme Court. In arguing that Jonnet established a new principle of law, appellants rely on Lebowitz v. Forbes Leasing and Finance Corporation, 456 F.2d 979 (3d Cir. 1972), cert. denied, 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972), which upheld the constitutionality of Pennsylvania’s foreign attachment procedures. Shortly after the decision in Lebowitz, however, the United States Supreme Court invalidated Pennsylvania’s and Florida’s prejudgment replevin statutes on due process grounds. Fuentes v. Shevin, supra. In Fuentes, Mr. Justice Stewart, writing for the Court, noted that seizure of property without notice and hearing had been permitted only in “extraordinary situations” in which three factors were present: (1) seizure was directly necessary to secure an important governmental or general public interest; (2) there has been a special need for prompt action; and (3) “the State has kept strict control over its monopoly of legitimate force; the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.” 407 U.S. at 90-91, 92 S.Ct. at 2000. Two years later, in Mitchell v. W. T. Grant Co., supra, the Court further delineated due process requirements in sustaining a Louisiana sequestration statute. The Louisiana statute authorized prejudgment seizure of property in which the attaching creditor possessed a security interest. The statute was upheld because it contained procedural safeguards distinguishing it from the replevin statutes considered in Fuentes: judicial approval of the sequestration order was required, based upon clearly demonstrated grounds, contained in an affidavit supporting the writ; the attaching creditor was required to post bond; the defendant could regain possession of the property by posting bond; and the defendant had a right to an immediate post-seizure hearing at which he could challenge the grounds for attachment and if successful, secure return of the property and obtain damages, including attorneys fees. 416 U.S. at 606, 94 S.Ct. at 1899. Finally, in North Georgia Finishing, Inc. v. Di-Chem, supra, the Court struck down a Georgia garnishment statute which permitted impoundment of a defendant’s property prior to judgment, based on a conclusory affidavit signed by the plaintiff or his counsel. Mr. Justice White, writing for the Court, held the statute invalid for the same reasons as the replevin statutes considered in Fuentes. The Georgia statute impermissiblyauthorized the seizure of property without notice or hearing. After the seizure, issued by the clerk based only on a conclusory affidavit, the owner was deprived of the property through the course of the litigation. Unlike the Louisiana statute upheld in Mitchell, it did not require a bond by the attaching party, the writ was issued by a clerk based on conclusory allegations, rather than by a judicial officer after review of an affidavit clearly setting forth facts justifying the attachment, and it failed to provide for an immediate hearing after seizure at which the defendant could challenge the grounds on which the writ was issued. 419 U.S. at 608, 95 S.Ct. at 722. It is apparent that the Pennsylvania rules authorizing writs of foreign attachment could not withstand the due process scrutiny required by the decisions of the United States Supreme Court beginning with Fuentes, in 1972, and followed by Mitchell in 1974, and Di-Chem in 1975. Assuming that prejudgment seizure for the purpose of obtaining jurisdiction over a nonresident defendant “secures an important governmental or general public interest,” the first test in Fuentes, it is clear that the Pennsylvania rules failed to provide adequate judicial control over the use of the attachment process. Moreover, as the Jonnet court recognized, the rules have none of the procedural safeguards required by Fuentes, Mitchell and Di-Chem. Although the decision in Lebowitz had not been expressly overruled at the time appellants filed their writs of foreign attachment, the decisions in Fuentes, Mitchell and Di-Chem sapped it of any precedential value. The result in Jonnet was clearly foreshadowed. Ill We next consider appellants’ claim that Judge Louik erred in refusing to issue an order for a writ of foreign attachment which would meet the requirements of procedural due process. A. Appellees contend that this issue is not properly before the Court because appellants consented to having their petition for a writ of foreign attachment treated as a request for injunctive relief. However, it ap pears from the record that appellants sought injunctive relief in the alternative, after Judge Louik indicated that he intended to deny their petition. These circumstances do not establish consent by appellants to withdraw or abandon their original petition. No transcript was made of the arguments before Judge Louik, but counsel for appellee, by affidavit, provides the following account: “And Now Comes Marcus Aaron II, who, being duly sworn according to law, deposes and says that he is Counsel for Republic Intermodal Corporation, and that in such capacity he appeared before Judge Louik of the Court of Common Pleas of Allegheny County at oral argument on February 11, 1976 pursuant to notice the previous day on Plaintiffs’ Motion for a Writ of Foreign Attachmment. After Judge Louik indicated orally that he would deny the petition, the judge commented that a restraining order might be the only possible remedy. Whereupon Marvin Schreiber, Esq., Attorney for Plaintiff-Appellants orally moved the Court to issue a Temporary Restraining Order and Preliminary Injunction. In issuing the Temporary Restraining Order of February 11, 1976, Judge Louik acted in response to the oral motion of Marvin Schreiber.” These facts establish only that, when advised that their petition was going to be denied, appellants sought relief in the alternative based upon a different legal theory. This is explicitly permitted by the Rules of Civil Procedure. Pa.R.Civ.P. 1020(c) provides that “Causes of action and defenses may be pleaded in the alternative.” Rule 1021 states: “Relief in.the alternative or of several different types . . . may be demanded.” Pa.R.Civ.P. 1021. These rules reflect the general principle that plaintiffs should not be forced to elect a particular theory in pursuing a claim, and avoids the attendant possibility that meritorious claims will fail because the wrong legal theory was chosen. Goodrich-Am- ram, Procedural Rules Service 2d § 1020(c), at 185 (1976). Appellants’ request for alternate relief cannot constitute consent to abandon or withdraw their petition, absent any showing of such intent on the record. Judge Louik’s statement that he would deny the petition and his subsequent opinion in which he said he had treated the petition as a request for injunctive relief constituted a denial of the petition. That issue has properly been preserved for appeal. B. Appellants’ challenge of the denial of their petition for an order for a writ of foreign attachment rests on a single premise: that despite the constitutional invalidity of Pennsylvania’s rules authorizing foreign attachment, a writ of foreign attachment is still a viable remedy in this Commonwealth. This premise is incorrect. The Third Circuit in Jonnet did not merely invalidate a particular aspect of Pennsylvania’s foreign attachment procedures, severable from the basic remedy itself. Rather, it determined that the entire scheme provided in the Rules of Civil Procedure, violated constitutional due process. By invalidating our foreign attachment rules, the Jonnet court struck down the only mechanism in Pennsylvania for obtaining a writ of foreign attachment. Appellants contend that Judge Louik should have scrutinized the procedural history of the present case to determine whether, regardless of the invalidity of the rules, appellee’s due process rights had been violated. Alternatively, they argue that Judge Louik should have granted them a hearing in response to their petition to allow them to establish grounds for a writ of foreign attachment, despite the absence of constitutional rules. After such a hearing, they assert that the court should have issued the writ, subject to conditions, not provided for in the rules, which would satisfy the due process rights of appellee. In support of these arguments, appellants point out that the Jonnet court explicitly limited its holding: “In conclusion, we must emphasize that our decision today does not hold foreign attachment procedures unconstitutional per se. Our concerns are with ex parte procedures which summarily deprive a party of an interest in property, even though temporarily, without notice, an opportunity for a prompt hearing, or other essential safeguards against wrongful seizure. We require only that Pennsylvania provide procedures consistent with fundamental fairness for the respective interests of creditor and debtor alike.” 530 F.2d at 1130. Because the court did not rule that foreign attachment was unconstitutional per se, appellants urge us to conclude that foreign attachment has not been abolished as a legal remedy in Pennsylvania, despite the constitutional infirmities of the rules. The difficulty with this argument is that the “ex parte procedures” invalidated in Jonnet were the only procedures which authorized foreign attachment in Pennsylvania. Appellants’ argument rests on the assumption that, even in the absence of a valid statute or rules, Pennsylvania trial courts have inherent power to issue writs of foreign attachment. This assumption is incorrect. Historically, the writ of foreign attachment has been a creature of statute (or, in modern times, a subject of judicial rule-making power) for which strict compliance with the statutory provisions was essential. See Goodrich-Amram, Procedural Rules Service 2d § 1251:2 at 15 (1976). Foreign attachment is not an independent cause of action entertained by the courts; it is solely a form of process, provided by statute or rule. Id. § 1251:5 at 20-21. The distinction appellants urge us to make between the procedures for obtaining a writ of foreign attachment, and foreign attachment, as an independent, substantive form of action, does not exist. In limiting the scope of its holding, the Jonnet court was not suggesting that foreign attachments be issued on an ad hoc basis by trial courts. That court held that due process requires that Pennsylvania provide procedures consistent with fundamental fairness, if foreign attachment is to be an available constitutional procedure. Determining the nature and form of new procedures for obtaining writs of foreign attachment involves policy considerations more appropriately resolved through the exercise of this Court’s constitutionally granted rule-making power, Pa.Const. art. V, § 10, than through ad hoc trial court determinations. Hence, in the absence of rules meeting constitutional standards, foreign attachment is not an available form of process in Pennsylvania. Orders affirmed. JONES, former C. J., did not participate in the decision of this case. NIX, J., did not participate in the consideration or decision of this case. . Pa.R.C.P. 1251 et seq. . Appeals were taken to the Superior Court, which transferred the appeals to this Court. The Superior Court concluded that this Court had exclusive jurisdiction of the appeals pursuant to section 202(9) of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, art. II, § 202(9), 17 P.S. § 211.202(9) (Supp. 1976). Section 202(9) provides that the Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in matters in which the court has held invalid as repugnant to the Constitution of the United States any act of Assembly of this Commonwealth. Neither party has objected to the jurisdiction of this Court on the grounds that the Superior Court may properly have had jurisdiction over the appeals. Our jurisdiction to decide the appeals is thereby perfected. See 17 P.S. § 211.503(a) (Supp.1976) and Pa.R.A.P. 741. By accepting jurisdiction in these circumstances we express no view as to whether section 202(9) vests exclusive jurisdiction in this Court where, as here, the court of common pleas has held unconstitutional a Rule of Court, rather than an act of the Assembly. . The validity of appellants’ efforts to commence suit by writ of foreign attachment is the only issue in these appeals. Therefore, we need not consider the effect of the New York judgment on the question whether Pennsylvania courts should entertain appellants’ suits. . On February 17, 1976, Judge Smith granted a supersedeas with respect to the orders vacating the foreign attachments, setting bond in the amount of $60,000.00. See Act of April 26, 1917, P.L. 102, § 2, 12 P.S. § 1109 (1953), suspended by Rule 5105(a) of the Rules of Appellate Procedure, effective July 1, 1976. Presently the rules governing supersedeas may be found at Pa.R.A.P. 1701 to 1782. Judge Smith’s order specified that the supersedeas would be limited to a period of one year. Upon appellants’ motion, this Court extended the supersedeas pending determination of the appeal. . When the United States Court of Appeals for the Third Circuit has held certain practices or procedures to violate federal constitutional rights, its decision will be accepted and followed by the courts of this Commonwealth until the United States Supreme Court has spoken on the issue. Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965). See also Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971). . The other relevant factors identified by the Court, which are considered only when the decision establishes a new principle of law, involve looking to the prior history of the rule in question to determine whether its purpose and effect would be benefited by nonretrospective treatment, and weighing the inequity of retrospective application. 404 U.S. at 106-07, 92 S.Ct. at 355. . The continued validity of this interest is questionable in light of modern long-arm statutes providing for in personam jurisdiction over nonresidents. See, e. g., 42 Pa.C.S.A. §§ 8301 et seq. (Supp. 1977); see also 42 Pa.C.S.A. § 5322, effective on repeal of § 29(4) of Act of July 9, 1976, P.L. 586 (Pamphlet 1977). In his concurring opinion in Jonnet, Judge Gibbons concluded that Pennsylvania’s foreign attachment procedures were unconstitutional because they permitted the exercise of jurisdiction over the property of individuals who did not have minimum contacts with the state sufficient to satisfy the requirements of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1130-43 (3d Cir. 1976) (concurring opinion of Gibbons, J.). Judge Gibbons’ view that the minimum contacts requirements of International Shoe are applicable to in rem and quasi in rem jurisdiction has recently been confirmed. Shaffer v. Heitner,-U.S. -, 97 S.Ct. 2569, 53 L. Ed.2d 683 (filed June 24, 1977). Thus, a state with a long-arm statute may have no governmental interest in obtaining jurisdiction over nonresidents through attachment. . Prior to the attachments obtained by appellants, the trial court in Jonnet concluded that the decision in Lebowitz was no longer viable and held the rules providing for foreign attachment unconstitutional. Jonnet v. Dollar Savings Bank of City of New York, 392 F.Supp. 1385 (W.D.Pa.1975) (Teitelbaum, J.), aff’d 530 F.2d 1123 (3d Cir. 1976). Judge Finkelhor reached the same conclusion in Radakovich v. Weisman, 124 P.L.J. 63 (C.P.1975). Appellants obtained the first writ of attachment three days after Radakovich was decided, December 15, 1975, and more than eight months after the April 7, 1975, trial court decision in Jonnet. . Relying on the absence of any suggestion in Jonnet that the decision be applied prospectively only, the District Court for the Eastern District of Pennsylvania, in a diversity case, concluded, as we have, that Jonnet must be applied to dissolve foreign attachments issued prior to the decision in Jonnet. Mel Richman, Inc. v. August Siekmann Mobelwerke, K. G., 411 F.Supp. 690 (E.D.Pa.1976) (Lord, C. J.). . Appellants have not challenged Judge Louik’s denial of injunctive relief. . Appellants contend that authority for the writ exists in the statutory provisions for foreign attachment. Act of June 13, 1836, P.L. 568, as amended, 12 P.S. §§ 2861 et seq. (1967), suspended by Pa.R.C.P. 1461, effective October 1,“ 1954. We find this argument unpersuasive. The statutory provisions were suspended by Pa.R.C.P. 1461; the invalidation of the present rules does not revive the suspended statutory provisions. Cf. 1 Pa.C. S.A. § 1956 (Supp.1977) (repeal of an amendatory statute does not revive the corresponding provision or section of the original statute or of any prior amendment); 1 Pa.C.S.A. § 1977 (Supp. 1977) (repeal of a repealing statute shall not be construed to revive the statute originally repealed). . In Shaffer v. Heitner, supra, the United States Supreme Court struck down a Delaware sequestration statute as applied to secure jurisdiction over individuals who did not have minimum contacts with the state sufficient to justify Delaware’s exercise of jurisdiction. See n. 7, supra. Appellees assert that they do not have minimum contacts with Pennsylvania sufficient to justify its exercise of jurisdiction over them. Our disposition renders consideration of this question unnecessary.

Opinion by Mr. Justice Eagen, The defendant-appellees were arrested and charged with violations of The Penal Code, Act of June 24, 1939, P. L. 872, as amended, 18 P.S. §4699.15, prohibiting the sale of certain personal property on Sunday. After hearings before a justice of the peace, the defendants were found guilty and sentenced to pay fines. Appeals were allowed to the County Court of Allegheny County. The cases were then heard by a judge of that court without a jury. After hearing the testimony of several Commonwealth witnesses, counsel agreed to stipulate all of the facts deemed material. Subsequently, the court entered orders in each case adjudging the defendants “not guilty.” The Commonwealth appeals. It is our conclusion that the Commonwealth has no right to appeal from the judgments below. Hence, the issues raised concerning the construction and constitutionality of the statute involved need not be discussed or considered. The Court very recently in Commonwealth v. Melton, 402 Pa. 628, 168 A. 2d 328 (1961), decided and explained under what circumstances the Commonwealth may appeal from an adverse ruling in a criminal case. None of the situations defined therein, wherein such an appeal is proper, are present here. In the cases at bar, the defendants were found “not guilty.” From such a judgment, an appeal does not lie. Commonwealth v. Benson, 94 Pa. Superior Ct. 10 (1928); Commonwealth v. Heiland, 110 Pa. Superior Ct. 188, 167 A. 439 (1933); Commonwealth v. Obenreder, 144 Pa. Superior Ct. 253, 19 A. 2d 497 (1941); Commonwealth v. Kerr, 150 Pa. Superior Ct. 598, 29 A. 2d 340 (1942); State v. Solomons, 27 Am. Dec. 469, 471-480. As stated by President Judge Keller in Commonwealth v. Obenreder, supra, at 254-255: “It is well settled in this State that the Commonwealth cannot appeal from a judgment of acquittal in criminal prosecutions, except in cases of nuisance, forcible entry and detainer, and forcible detainer .... And this is so whether the prosecution be by indictment ... or by summary proceeding .... And, if the former, it does not matter whether the verdict be rendered by the jury of its own accord or by direction of the court .... Such a verdict or judgment of acquittal is not to be confused with the quashing of an indictment, or an arrest of judgment following a verdict of guilty, or a judgment sustaining a demurrer to the evidence, which raise only questions of law and do not result in a verdict of not guilty or judgment of acquittal, and accordingly in those cases, the Commonwealth may appeal.” This rule was reiterated by Judge (now President Judge) Rhodes in Commonwealth v. Kerr, supra, wherein at 602, he said: “[T]he result of the verdict of not guilty is that the Commonwealth is precluded from appealing from the judgment of acquittal.” As pointed out in Commonwealth v. Heiland, supra, at 189: “The rule is the same whether the result is an error committed by the trial court or a perverse finding of the jury.” Even in a case wherein the court below sustains the defendant’s demurrer to the Commonwealth’s evidence and in addition erroneously enters a judgment of not guilty, the Commonwealth may not appeal. Commonwealth v. Kerr, supra. It is the position of the Commonwealth that since the facts were agreed upon and stipulated, that the court’s judgment was based entirely upon a construction of the statute and hence involves a pure question of law giving the Commonwealth the right to appeal. Many decisions are against this position. In Commonwealth v. Preston, 92 Pa. Superior Ct. 159 (1927), the defendant was charged with violating the Child Labor Act. On appeal from a conviction before an alderman, the case was tried below before a judge without a jury on an agreed statement of facts and the decision of the court was based solely on a construction of the relevant statute. Prom a judgment of “not guilty,” the Commonwealth appealed. The Superior Court at 162, said: “The correctness of the construction of the statute by the Court below may involve an important question, but the more important the question the stronger the reason for withholding an expression of an opinion upon it until it arises in a real dispute, where the appellate court has jurisdiction of an appeal by a defendant alleging that he has been improperly convicted. When the question argued on this appeal arises upon the record of a case properly before us, it will deserve most careful and serious consideration. The defendant having been adjudged not guilty by the court which had jurisdiction to try him, we are without authority, in the circumstances here presented, to reverse that judgment and order a new trial.” (Emphasis added). In Commonwealth v. Hollinger, 170 Pa. Superior Ct. 180, 84 A. 2d 794 (1951), the defendant was charged with a violation of a regulation of the Milk Control Commission. On appeal, the issue was tried on stipulated facts and the defendant found not guilty. Tbe Superior Court again ruled that tbe Commonwealth bad no right to appeal. In Commonwealth v. Lodge No. 148, L.O.O.M., 188 Pa. Superior Ct. 531, 149 A. 2d 565 (1959), tbe defendants were charged with operating a public eating place-without first obtaining a license. Tbe issue was tried before tbe court below upon an agreed stipulation of facts. Tbe defendants were found not guilty because the court ruled that they were not operating a “public eating place” as that term is defined in the statute. Tbe Superior Court reaffirmed tbe rule that tbe Commonwealth bad no right to appeal. It is, therefore, clear to us that tbe appeals herein are without authority in law. Appeals quashed. Costs upon the Commonwealth. Mr. Chief Justice Bell concurs in .the result. Emphasis supplied.

Opinion by Rice, P. J., 1. This prosecution was commenced in June, 1901. The indictment was returned a true bill on September 10, and on the following day the defendants made a motion to quash the indictment based on the ex parte affidavit of Craig. He alleged certain facts tending to show that Samuel Barner, one of the grand jurors, was disqualified by reason of bias, also that “ he had no knowledge of the same ” until the day the affidavit was made. But he did not allege, nor was there any evidence given on the hearing of the motion, that the defendants had made any investigation as to the qualifications of the grand jurors before the day of their meeting, or that they had not had opportunity to do so. Nor is it apparent that the facts could not have been learned by reasonable diligence. All that the court had before it relative to the defendants, prior knowledge of the objection to the grand juror, and their diligence in raising it, was the allegation above referred to of the affidavit. This ex parte affidavit had served its purpose when it was received by the court as ground for entertaining the motion; the court was not bound to treat any of its allegations as verity in the disposition of the motion. Therefore, the only evidence before the court below upon the motion to quash, and the only evidence properly before us for consideration in that connection, is the testimony of the grand juror himself. This fails to establish the more serious allegations contained in the affidavit. In reviewing its action in overruling the motion, much weight is to be given to the judgment of the court below in whose presence the grand juror appeared and by whom his manner and conduct as well as his language were scrutinized. Nothing short of palpable error in its decision would justify a reversal of it. Moreover, it is well settled that a grand juror may be challenged for cause, but it is not the law that what might have been ground of challenge as to a particular grand juror is, iinder all circumstances, ground for quashing the indictment. When the objection to the grand juror was known, or might have been known by the exercise of reasonable diligence, and might have been interposed by challenge, but was not, we think it clear, both upon principle and authority, that a refusal to quash the indictment for the same cause is not reversible error. In Holland v. Commonwealth, 82 Pa. 806, 322, the objection to the two grand jurors was as serious as that disclosed by the testimony of the grand juror in this case, but the court held, that while it might have been a ground of challenge, it was not ground for quashing the indictment. 2. The assignment that the court erred in refusing to arrest the judgment must be overruled for the obvious reason that no ground for the arrest appears of record. The depositions taken in support of the motion are not part of the record: Alexander v. Commonwealth, 105 Pa. 1; Commonwealth v. Bradley, 16 Pa. Superior Ct. 561. 3. In Alexander v. Commonwealth, supra, it was declared that it was not the intendment of the act of 1874, allowing exceptions in criminal cases, “ that decisions which have always rested in the sole discretion of the court where the cause was tried should be made subject to exception and review.” Among the rulings therein expressly referred to by the court are, a refusal to postpone the trial, and a refusal of an application for an attachment for an absent witness. We do not say that in a plain case of abuse of discretion the action of the court in such matters might not be subject to review. Be that as it may, we do not think such a case is presented by the third and fourth assignment of errors, which, relates to what took place in the hearing of the motion to quash. The defendants declared in their affidavit that they were prepared to prove their allegations, and asked leave to call their witnesses for that purpose. Leave was granted, and they entered upon the hearing without suggesting that they were not prepared. After they had examined the grand juror, they asked for an attachment for an absent witness who lived in another county. In such circumstances, the refusal to suspend the hearing of the preliminary motion, and thus delay the trial of the case, is not ground for reversal. ' See Commonwealth v. Dietrich, 7 Pa. Superior Ct. 515. 4. It is well settled in Pennsylvania, that although the uncorroborated testimony of an accomplice should be received with caution, yet there is no rule of law forbidding a conviction upon his evidence alone: Carroll v. Commonwealth, 84 Pa. 107; Kilrow v. Commonwealth, 89 Pa. 480; Ettinger v. Commonwealth, 98 Pa. 338; Cox v. Commonwealth, 125 Pa. 94. As was said in Ettinger v. Commonwealth, the principle which allows the testimony of an accomplice to go to the jury for their consideration necessarily involves the right to believe and act upon it. Hence, no error was committed in refusing the defendant’s first point (fifth assignment) in which they asked the court not merely to advise, but to charge the jury to acquit. It is the duty of the court to admonish the jury of the danger of convicting upon the uncorroborated testimony of an accomplice, and it is common practice for the courts to advise them not to do so. But no set form of expression in which such admonition and advice must be given has been prescribed. In this case the defendants presented seven points, all of which were unequivocally affirmed, excepting the first, which for the reasons above given could not be affirmed. All of these points were well calculated to impress upon the jury the duty to exercise great care in weighing the testimony and to give to the defendants the benefit of every reasonable doubt, and the second was directed expressly to the caution that ought to be observed in accepting and acting on the uncorroborated testimony of an accomplice. It was as follows: “ The evidence of Nicholson and Battles, who are self-confessed participators in the crime charged in this indictment, coming as it does from a polluted source, should be received with great caution and closely and doubtingly examined by the jury.” The trial judge did not stop with a merely perfunctory affirmance of the point, but emphatically reiterated the essential parts of it in his answer. After a very careful examination of the evidence, we see no reason to doubt that the jury gave due heed to the instructions. One of latest, if not the latest, utterances of the Supreme Court upon the subject is contained in the opinion of Chief Justice Paxson in Cox v. Commonwealth, 125 Pa. 94: “A jury may believe an uncorroborated accomplice, and if his testimony produces in their minds a conviction of the defendant’s guilt, beyond a reasonable doubt, they may convict. If the testimony of the accomplice, his manner of testifying, his appearance upon the witness stand, impress a jury with the truth of his statement, there is no inflexible rule of law which prevents a conviction. In such case it is for the trial judge who also heard the witness, noticed his manner and appearance upon the stand, and who can judge equally with the jury as to his credibility, to say whether he is satisfied with the verdict. If both the jury and the court are satisfied that he has told the truth, there is no reason why the verdict should not stand. If we lay down an inflexible rule in regard to corroboration, there may be instances when criminals will escape although both jury and court are satisfied beyond a reasonable doubt of their guilt.” Here the defendants evidently appreciated the difficulty in the way of an affirmance of their first point and framed their second point to meet the contingency of a refusal of the former. Having obtained from the court the caution to the jury which they asked for, we are of opinion that they have no reason to complain that the court did not go further. 5. The chickens were stolen on a Saturday night in January, 1900. According to the testimony of one of the accomplices, they were put in bags which were taken by Craig with the declaration that he would sell them on Monday. He testified further that on Monday afternoon Craig paid him part of the price he had received. In view of this testimony we cannot say that it would have been wholly irrelevant to show that Craig sold two bags of chickens early on a Monday morning in January, 1900. But the commonwealth failed to prove the fact alleged. Hence we cannot see that the overruling of the objection, which is the subject of the sixth assignment, even if erroneous, harmed the, defendant. The appellant must not only establish the existence of an error in the proceedings below, but that the error has tended to his injury. It is not sufficient, as a general rule, to show that an improper question, either in form or substance, had been put to a witness; it must appear that an answer was received which tended to injure the case of the appellant: Commonwealth v. Kay, 14 Pa. Superior Ct. 376. See also Philadelphia v. Reeder, 173 Pa. 281. It is very clear that no evidence was given by the witness, Fickes, which could by any possibility have harmed the defendants. The failure of the commonwealth to make good its offer would more probably operate with the jury in the defendants’ favor. Moreover, no motion was made to strike it out, nor was the court asked to instruct the jury to disregard it, as might have been done upon the ground that it did not come up to the offer. See Commonwealth v. Bell, 166 Pa. 405. In any way that the assignment may be viewed, we think it should be overruled. 6. If the constable who made the information upon which the warrant was based had been called as a witness and had fixed the date of the larceny differently, the information might have been admissible in evidence to contradict him. But we are of opinion that it was not admissible, either on the part of the commonwealth or the defendants, as primary evidence, of the date of the larceny. 7. It is urged in support of the eighth and ninth assignments, that where, on cross-examination, a party denies the making of statements which tend to show his bias or interest, witnesses may be called by the opposing party to contradict him and thus affect his credibility with the jury. As was said in one of the cases cited by the appellants’ counsel (Geary v. People, 22 Mich. 220), if the witness Nicholson had expectation of immunity depending on defendants’ conviction, or on his giving testimony to incriminate them, it was proper that the jury should know it; and if satisfied on that point, they might not regard his testimony just as they would if no such interest existed. But, to say nothing of the vagueness of the offers, the manifest objection to them is that the statement denied by Nicholson and offered to be proved by the defendants was not in terms, or in effect, that he had been promised or expected immunity if he testified against the defendants. To be more explicit, the states ment that “ he had been promised,” by some unnamed person, “ to be left out at court,” coupled with the statement, “ that he believed they were going back on him,” would tend to show that he had no expectation based on the promise that had been made. But aside from that, there is nothing in the statement to show that his being “left out at court” was in any way dependent upon the conviction of the defendants or the testimony that he might give against them. If, therefore, the testimony had been admitted, it would not have shown that the witness was affected by bias or interest; and it is well settled that in order to impeach a witness by proof of contradictory statements made by him, it is essential that such statements have reference to some matter which is relevant and material to the issue on trial. The ruling in Hester v. Commonwealth, 85 Pa. 139, at p. 157, fully sustains the ruling of the court below upon these, offers. 8. It is legitimate cross-examination of an ordinary witness, who has testified in chief that what purports to be his signature, was not written by him, to call upon him to write, in order that such writing may be compared with the disputed writing for the purpose of contradicting him. The same must be true in the case of a defendant in a criminal' case who has offered himself as a witness, unless, as has been suggested, he is at liberty to stop at any point he chooses. But this latter doctrine is contrary to the great weight of authority. A defendant in a criminal case cannot be compelled to testify, and under our statute no inference can be drawn from, nor comment be made on, his failure to do so. But by consenting to take the stand and swearing to tell the truth and the whole truth, he waives his constitutional privilege, and may be cross-examined in the same manner as any other witness. There is this difference, however, between an ordinary witness, and a defendant testifying in his own behalf; the former goes upon the stand by compulsion, the latter voluntarily. Having waived his constitutional privilege to keep silent, he cannot give testimony which makes in his favor, and then object to legitimate cross-examination, upon the ground that his answers will crim-inate him : Commonwealth v. House, 6 Pa. Superior Ct. 92, 108, and cases there cited. See also People v, Gardner, 28 L. R. A, 699, añd notes. There was, therefore, no error in the ruling which is the subject of the tenth assignment. 9. The record does not show that the defendants were present when the verdict was rendered ; nor is it imperatively necessary in cases of this class that it should: Holmes v. Commonwealth, 25 Pa. 221. And as the depositions submitted in support of the motion in arrest of judgment are not part of the record, we might properly dismiss the eleventh assignment without further comment. It is not necessary, however, to put the decision on the technical ground. The question sought to be raised by the assignment was ruled in Lynch v. Commonwealth, 88 Pa. 189, where it was held, quoting the language of Chief Justice AGnew, that “ it cannot be doubted, even if arraignment be necessary as a fact in a trial for larceny, that mere voluntary absence at the rendition of the verdict, by one out on bail, who has appeared, and been tried regularly, is not a fatal error.” The judgment is affirmed and the record remitted to the court below to the end that the sentence be fully carried into effect.

Opinion by Mr. Justice Potter, Four appeals from the decree of the Orphans’ Court of Philadelphia County, making distribution of the Estate of George N. Tatham, deceased, were presented and were argued together, and they will all be considered in this opinion. From the history of the case, as given by counsel, it appears that George N. Tatham died August 19, 1888, leaving a last will, dated March 24, 1885, and a codicil, dated December 9, 1886. He was survived by his wife, Catherine L. Tatham, and by two sons, George N. Tatham, Jr., and Edmnnd E. Tatham. One son, George N. Tatham, Jr., died December 26, 1903, intestate, unmarried and without issue. The other son, Edmund E. Tatham, died June 9, 1911, leaving to survive him a widow, Mary E. Tatham, and no issue. By his will he gave his whole .estate to his wife. The testator’s widow, Catherine L. Tatham, died May 15, 1914, testate, and appointed as her executor, Eichard S. Hunter, one of the appellants here. He is also administrator of the estate of George N. Tatham, Jr. The testator was also survived by three brothers, William, Henry and Charles, and by three children of a brother Benjamin, who was not living at the date of testator’s death. The three brothers, William, Henry and Charles, all died during the lifetime of testator’s widow. Descendants of all these brothers are now alive, with the exception of William, who left no children. By his will dated March 24, 1885, testator gave his residuary estate to his executors in trust for the benefit of his widow and children during the lifetime of the former, and further provided: “Article XXII. And upon further trust that in case of the death of either of my sons, or both during the lifetime of their mother, my said executors and trustees shall continue to hold the remainder of my residuary estate, and the investments for annuities after their termination, and shall collect the interest, and income from the same, and shall apply the proportions of the same respectively for the use of any widow or lawful issue or children of either of my sons, then living, or the issue of such as may be then dead, such parties taking in equal shares, per stirpes in all cases. And if either or both of my sons should die without having any widow or lawful issue, then the whole residuary interest of such son or sons shall go to and be paid by my executors and trustees to my wife, if then living, for her separate use for her natural life, and the principal of the same shall be paid and distributed -by my executors and trustees after her death in accord anee with the terms of her will, or in the absence of such testamentary direction then I devise and bequeath the entire reversion to my lawful heirs and distributees as provided by the intestate laws of the Commonwealth of Pennsylvania.” By a codicil, dated December 8, 1886, testator provided : “And whereas in the XXII Article of my will, I have given to my wife a power of appointment by will in case she survives my sons or either of them and their issue, now I revoke so much of said XXII Article as confers such power of appointment, and in lieu of what I have said upon that subject in my will, I declare my will to be that my wife shall have and I hereby give her, the absolute power of appointment, by her will, over thirty thousand (f30,000) dollars of my estate. And as to the rest, residue and remainder of my estate, and as to the whole of it, in case my wife makes no such appointment, I give, devise and bequeath the same to my executors and trustees and the survivor and heirs of the survivor of them, as named in my will, in trust, to distribute the same — in case my sons are both dead, leaving at the time of the death of my wife no lawful issue surviving — to my own right heirs and distributees as provided by the intestate laws of the Commonwealth of Pennsylvania. As to all other matters I direct that said XXII Article shall remain as it now stands and I expressly confirm and republish my said will with the alterations thereto made hereby.” After the death of the widow the surviving trustee filed his seventh and final account. Upon the audit before Lamorelle, J., various conflicting claims were made upon the principal sum awaiting distribution. The auditing judge ruled that the “heirs and distributees” of testator were those who answered to this description at the time of testator’s death; he held further that the widow was excluded as one of the class by the terms of the will; that the estates of the two sons were entitled to the estate of testator, subject to the payment of an annuity to the widow of one of the sons during her widowhood, and also subject to the payment of $30,000, which was disposed of by the widow under the power of appointment given to her by testator. Exceptions were filed on behalf of all parties, and the court in banc sustained certain of them filed by nieces and nephews of the testator, and by the widow of one of his sons. It decided that the testator must be held to have intended that his heirs were not to be determined at the date of his death, but that they were to be ascertained only after all the life interests were terminated, which occurred at the .date of the death of his widow. The result of this conclusion was tO' exclude the estate of the widow, and the estates of both sons of testator from participation in the residue of testator’s estate. The soundness of this conclusion is the first and principal question raised by the assignments of error. That the class described as testar tor’s “heirs,” to whom a remainder or executory interest is given by a will, are to be ascertained at the death of the testator, is admittedly the general rule. This is so well recognized, that nothing but the expression of a clear intention to the contrary in the will, can be allowed to alter the rule. In one of our latest cases in which the subject was considered, Bache’s Est., 246 Pa. 276, Mr. Justice Mestkezat said (p. 279) : “It is settled by a long line of decisions in this State that a devise of real estate to one for life with remainder to the testator’s heirs vests the remainder in those who answer such description at the time of his death unless the will affords clear and unequivocal evidence to the contrary; and it is immaterial that the life tenant is one of the class who will take the remainder: Stewart’s Est., 147 Pa. 383; Buzby’s App., 61 Pa. 111. The law favors vested rather than contingent estates and unless it clearly appear from the context or the circumstances of the case that a contingent interest was intended, the remainder will be regarded as vesting at the death of the testator and not at the expiration of the life tenancy.” And in McFillin’s Est., 235 Pa. 175, it was said per curiam (p. 177) : “The thoroughly settled rule of construction is that where a testator directs that in a certain event after the expiration of a particular interest the estate shall go to his heirs or next of kin, or to the persons who would take under the intestate law, he is to be understood as meaning the persons who would have so taken at the time of his death, and not at the time appointed for taking, unless a different intent is plainly manifested in his will: Buzby’s App., 61 Pa. 111; Stewart’s Est., 147 Pa. 383; Fitzpatrick’s Est., 233 Pa. 33.” In the case last cited, Fitzpatrick’s Est., the bequest was, after a life estate, to testator’s legal heirs. Mr. Justice Elkin said (p. 34) : “The learned court below directed the distribution to be made to the ‘legal heirs’ of the testator living at the time of his death. In so doing he applied a rule of construction of almost universal application. The rule is never varied unless from the four corners of the will a different intention clearly appears.” It was there held that the estate of the life-tenant, who was a sister of testator and one of his next of kin, was entitled to share in the distribution of the principal. The question then to be determined is, whether anything is to be found in the will or codicil of George N. Tatham, which clearly indicates that in using the expression “my own right heirs,” he did not refer to such persons as were his heirs at the date of his death. We have looked in vain for anything to show that the testator used the word “heirs,” in any other than the ordinary sense. The relationship was at once fixed, at the date of his death. He gave his estate to his “own right heirs and distributees, as provided by the intestate laws.” None but those upon whom the law cast the descent at the date of testator’s death, would answer to that description. It adds no weight to the argument against giving to the words their natural and legal significance, to say that testator has only done that which the intestate law would have done for him. It was his privilege to say that under certain circumstances he was content to have his estate go in accordance with the intestate laws. Nor will it do, to say that the application of the settled rule will in this case lead to peculiar and unusual results, which the testator would perhaps have wished to avoid, had they occurred to him. With the results of testator’s action in so far as it may take property from one line of descent, and place it in another, we have nothing to do. If the testator had really meant that his estate should go to collateral heirs, or to those who might have been his heirs, had he outlived his wife and his two sons, he could easily have said so. We find nothing in the context to control the natural meaning of testator’s words or to indicate, much less to demonstrate, that he intended to exclude the tenants for life, from his description of his “own right heirs and distributees.” Upon its facts, we are unable to distinguish the present case from Stewart’s Est., 147 Pa. 383. The principle there discussed and applied is directly in point here, and requires us to hold that when the testator directed that his estate should go to his own “right heirs and distributees,” he meant the persons who would have taken as such at the time of his death. That class as then constituted, consisted of the widow and two sons. The auditing judge held, however, that the widow of the testator is excluded from that class by necessary implication. Counsel for the administratrix of Edmund R. Tatham, one of the deceased sons, also urges in argument, that the testator excluded the widow directly, by providing that the gifts of income shall be “in lieu and satisfaction of dower and her interest in my estate as if under the intestate laws of Pennsylvania.” The reference is to an interest similar to that given by the intestate laws, and as the only such interest mentioned, was the one given to “my own right heirs and distributees,” it is contended that it is a fair inference, that the testator by this statement intended to exclude the widow from sharing as one of the “right heirs and distributees.” This suggestion is strengthened by the fact that the reference is only to “gifts of income.” Nothing is said as to gifts of principal in this connection, and this omission would indicate that no gift of principal was intended. The auditing judge also held that the provisions in regard to the power of appointment showed a “clear and unequivocal intention” to exclude the widow from the class of right heirs and distributees, by necessary implication. The testator expressly limited the amount of money over which that power was to be exercised. And it is argued that he could not have intended to enlarge that power through the round about method of a gift to “distributees.” The question is not free from difficulty, but after full consideration we feel impelled to agree with the conclusion that the testator did not intend to include his widow as one of his right heirs and distributees. We think it may fairly be inferred from the testator’s language, that he intended the gifts of income to be the only interest of his wife in the estate, and that he gave them to her instead of a share in the principal, as one of his heirs and distributees. This interpretation best harmonizes and makes effective the language of both the will and the codicil. As to this aspect of the case it seems to fall squarely within the lines of the decision in Sullivan v. Straus, 161 Pa. 145. There the testator expressly provided that his son John was to have no part of his estate, and then added immediately: “It must be perfectly understood that all of my estate belongs to my children and grandchildren.” This court said: “After this language it is altogether impossible to hold that the testator intended, or was even willing, that John should take any part of his estate. Of course if after that, he had expressly given a legacy to this son by name, he would take the gift because it was expressed subsequent to the exclusion. But it cannot be done by a mere implication even when the subsequent gift is to a class which would include John.” In the present case we have express exclusion by the testator from a gift to which reference is specifically made. In addition the fact appears that the codicil was drawn for the purpose of limiting the widow’s power of disposition over the corpus of the estate. It is clear from the codicil that the testator intended that distribution of his estate should be made at the death of his wife. He directed his executors and trustees to distribute the estate at that time, saying that in case his two sons were then both dead leaving no lawful issue surviving, the distribution was to be then made to his “own right heirs and distributees as provided by the intestate laws.” The annuity payable to the widow of Edmund R. Tatham, testator’s son, would, therefore, necessarily cease at the time fixed for the distribution of the corpus of the estate. The appellant, Richard S. Hunter, as executor of the widow, filed the following exceptions to the adjudication: “9. The learned auditing judge erred in holding that the interest of George N. Tatham, Jr., in the proceeds of the real estate condemned and taken and paid for by the United State Government subsequent to testator’s death, and prior to the death of George N. Tatham, Jr., Was, after the date of the condemnation and payment, real estate and not personalty. “10. The learned auditing judge erred in not awarding to the estate of George N. Tatham, Jr., and through that estate to the estate of Catherine L. Tatham, deceased, the one-half of the proceeds of the condemnation proceedings whereby certain real estate known as Windmill Island, was condemned, taken and paid for by the United States Government, prior to the death of George N. Tatham, Jr.” The court below dismissed these exceptions, and its action in so doing is made the subject of the ninth and tenth assignments of error, under the appeal of Richard S. Hunter, executor of Catherine L. Tatham, deceased. The court below was right in dismissing these excep tions, and in excluding the widow’s estate from participation in the fund derived from testator’s interest in Windmill Island. The controlling principle is illustrated in Henszey’s Est., 220 Pa. 212; it there appeared that land was sold by executors and trustees more than two years after testator’s death under a discretionary power of sale, and it was held that the proceeds must be regarded as real estate for purposes of distribution, the interest of the devisees having vested at the date of testator’s death. After reviewing the decisions we there said: “The conversion did not take place until the actual sale by the trustees under their discretionary power. But at that time, the law had already determined the respective interests of Mrs. Henszey and her children in the land sold, and those interests could not be altered by the act of the trustees.......We think it may properly be considered a sound rule, that a sale made by trustees, for the convenient management of the trust, and not under positive directions in the will, does not alter the course of distribution.” In the case at bar, the property was taken under proceedings in the exercise of the power of eminent domain, and they could certainly have no more effect in altering the course of distribution, than a sale made by trustees for the convenient management of the estate. In Hunter’s appeals, the assignments of error from one to five inclusive are dismissed. These assignments all relate to the right of the estate of' Catherine L. Tat-ham, widow of testator, to participate in the distribution. Assignments six and seven relate to the action of the court below in holding that the annuity to the widow of Edmund R. Tatham continued after the death of testator’s widow, and in awarding $30,000 to the surviving trustee to be set aside for the payment of such annuity. These assignments are sustained. The eighth assignment is to the refusal of the court below to award the principal of testator’s residuary estate to the estates of .his widow and sons in equal one-third parts. This as signment is dismissed, as are also assignments nine and ten, which relate to the distribution of that part of the fund derived from the appropriation and sale of testator’s interest in Windmill Island. Assignments number eleven and twelve are sustained. In the appeal of Mary E. Tatham, administratrix, assignments one to five inclusive, are to the action of the court below in sustaining exceptions to the adjudication, and thereby holding that the distributees were to be ascertained under the intestate law as of the date of the death of testator’s widow, and not as of the date of his own death. We agree with the conclusion of the auditing judge in this particular, and all these assignments are, therefore, sustained. The sixth assignment, which is to the final decree, is also sustained. In the appeal of Caldwell K. Biddle, executor of Catherine K. Tatham, we find no merit in any of the assignments of error which raise questions peculiar to that appeal, and they are all dismissed. The decree of the Orphans’ Court is reversed, and it is ordered that the record be remitted to the court below for further proceedings in accordance with this opinion.

M’Kean, C. J. Unquestionably the intention of the testator is the great polar star by which we must regulate our construction of wills. But this construction must be bounded by the words of the will itself. . The general rule has uniformly been, that unless the intent can be collected from the words, it is in vain to urge it; for otherwise we should be making a man’s will, not construing it. Vid. 1 Atky. 373, 374. We may, with Lord Talbot, (Forrest. 343,) “privately ‘1 think, ’ ’ that the devise to Mrs. Torbert, was for her separate use; but “we are not at liberty by private opinion, to “make a construction against the plain words of a will.” No technical, or other expressions whatever, such as “for “the livelihood of the wife,” &c. are inserted in the will, from which we can collect, or necessarily infer, that this was meant as an independent provision for the daughter. Judging on the face of the'will and codicil, I can discover no clear intent disclosed by the testator, that the rents and profits of the plantation should not be subject to the controul, or inter-meddling of the husband of Beulah; and unless such intent does not appear, the law gives him the whole, in right of his wife. In 4 R., 67, ICEjstnbdv, J., said that the decision of Torbert v. Twining had become a rule of property in the state. Referred to in 7 S. & R., 114. As to the corn growing in the ground at the time of'the testator’s death, it cannot belong to the defendants, as executors. Shippen and Yeates, Justices, fully concurred therein. Smith, J. I own I have serious doubts on the subject. It appears by the cases in 3 Atky. already cited, that no form of *44.0] * words is necessary to create a separate trust for the -* feme, and I have met with an authority in 3 Bro. Cha. Rep. 381, that a legacy to a feme covert, “her receipt to be a “sufficient discharge to the executors,” has been decreed equivalent to saying ‘ ‘ to her sole and separate use. ’ ’ Besides in England, the plaintiff’s remedy against the trustees must have been in chancery, and if the husband came into equity to demand these profits, they would put terms on him and oblige him to make a proper provision for his wife. 2 Bro. Cha. Ca. 351. 2 Eq. Ca. Ab. 146. 1 Wms. 459. Bunb. 86. Prec. Cha. 548. 2 Wms. 639. Eorrest. 43. 313. Yeates, J. Even in England, I doubt greatly whether the Eord Chancellor would interpose his authority, if the same facts were disclosed to him, as came to the knowledge of the Chief Justice and myself, at the last assizes for Bucks county, judicially. It appeared to us that Mrs. Torbert left her husband without cause, refused to return .to him on overtures made her, and prosecuted him for adultery without cause, merely to found certain proceedings against him for a divorce, in the state of Connecticut. M’Kean, C. J. The chancellor clearly would not interpose in such a case. Judgment for the plaintiffs for 90I. 15s. já. damages, and sixpence costs.

OPINION KAUFFMAN, Justice. The Unemployment Compensation Board of Review (“Board of Review”) appeals from an order of the Commonwealth Court reversing the Board of Review and allowing payment of unemployment compensation benefits to Theresa J. Ceja (“claimant”). At issue is the nature of the evidence presented against claimant at her compensation hearing, the manner in which the hearing was conducted, and, more generally, the validity of the existing standard for evaluating uncorroborated hearsay evidence admitted without objection at administrative hearings. On January 4, 1977, claimant was dismissed from her job as a calculating operator with the Commonwealth of Pennsylvania, Department of Revenue (“employer”), by whom she had been employed for ten years. The Bureau of Employment Security denied her unemployment compensation benefits after determining that she had been discharged for willful misconduct and was therefore, precluded from receiving compensation by Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Claimant appealed and, after a hearing before a referee, was again denied benefits. The Board of Review affirmed the referee’s decision and made the following findings of fact: 1. Claimant was last employed by the Pennsylvania Department of Revenue, Harrisburg, Pennsylvania, as a calculating operator at a rate of $5.30 per hour. Her length of employment covered 10 years. Her last day of work was January 13, 1977. 2. The claimant had been repeatedly warned about her refusal to follow instructions and the causing of disruptions in her work area; the claimant had been disciplined for such conduct. 3. On December 6, 1976 the claimant directed abusive and profane language at her supervisor. 4. The employer, after investigating the incident of December 6, 1976, discharged the claimant. Relying on these findings, the Board of Review concluded that claimant’s “conduct was clearly insubordinate and rose to the level of willful misconduct under Section 402(e) of the Unemployment Compensation Law” and, therefore, that she was ineligible for benefits. Claimant then appealed to the Commonwealth Court which reversed the Board of Review, concluding that employer had failed to sustain its burden of proving willful misconduct because it had presented only uncorroborated hearsay evidence. The Court relied on its decision in Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366 (1976), which held that hearsay, even though admitted without objection, could not support a Board of Review finding unless it was corroborated by competent evidence. We granted allocatur to consider the appropriateness of the Walker guidelines for evaluating hearsay evidence in administrative hearings. The evidence offered by employer without formal objection by claimant at the hearing consisted of various memo-randa and letters pertaining to claimant’s employment histo ry. These documents included two notices of suspension, one in August 1973 and the other in November 1975, based upon alleged belligerent attitude and insubordination, including the use of abusive language. Claimant, who was not represented by counsel at the hearing, admitted that she had been suspended twice in her ten-year employment, but denied the reasons for suspension indicated in the offered documents. Employer’s documents further alleged that on December 6 and 7, 1976, claimant created a disturbance by calling her supervisor an “S.O.B.” As evidence of this incident which led directly to claimant’s dismissal, employer offered: (1) The December 10, 1976 memorandum of Francis J. Don-leavy, Chief of the Taxing and Resettlement Division, to Peter Capataides, Director of the Bureau of Corporation Taxes, describing claimant’s behavior on December 6 and 7, as told to him by others; (2) a letter written December 13, 1976 by Mr. Capataides to Darleen Fritz, Assistant to the Secretary of Revenue, recommending claimant’s dismissal; (3) two eyewitness accounts of claimant’s behavior on December 6 and 7, written on December 14, 1976, at the request of the Bureau’s Assistant Director, a week after the incidents and a day after the letter recommending dismissal. Although she never formally objected to this evidence, claimant expressly denied calling her supervisor an “S.O.B.” and stated that the memoranda were inaccurate and “twisted.” Employer failed to call any witness with personal knowledge of the events in dispute or of the manner in which the documentary evidence had been prepared. I The Board of Review argues initially that, notwithstanding the Walker guidelines, no corroborative evidence is necessary because employer’s documents are themselves legally competent evidence under the Uniform Business Records as Evidence Act (UBREA), Act of May 4, 1939, P.L. 42, 28 P.S. §§ 91a-91d. After carefully examining the record, however, we conclude that employer’s documents do not meet the UBREA criteria. Employer’s counsel, without calling any witnesses, simply placed himself under oath and introduced the documents as employer’s total case. Nothing in the record indicates that he had any first-hand knowledge of the incidents described in the documents, nor was there any attempt to establish him either as the custodian of the documents or in any way qualified to testify to their identity and mode of preparation. To qualify as competent evidence under the UBREA, the records in question must be shown to have been made in the regular course of business at or near the time of the events they describe. Here, however, no attempt was made to demonstrate that these documents were prepared in the regular course of business. They are not on special forms which might indicate the manner in which disciplinary problems are customarily reported, nor is there any testimony showing that disciplinary problems are handled in any standard, routine manner. The employer failed to lay any foundation for introduction of its documents as business records, and thus they are not competent evidence under the UBREA exception to the hearsay rule. As such, the Commonwealth Court properly treated employer’s documents as uncorroborated hearsay. The Court consequently applied the Walker standards rejecting the use of hearsay as the sole basis for a finding of fact, and held that employer had failed to meet its burden of proving willful misconduct. The Board of Review argues, however, that the Walker rule regarding unobjected to hearsay does not rest on sound legal principle and must, therefore, be overruled. The remainder of this opinion will examine the Walker rule and evaluate the proceedings below in the context of our analysis. II It is axiomatic that the rules governing admission of proof in judicial trials, which are designed to protect juries from unreliable and sometimes confusing evidence, are less useful in the administrative context, and may often be counter-productive. Professor Wigmore’s classic treatise on evidence noted: . . . any attempt to apply strictly the jury-trial rules of Evidence to an administrative tribunal acting without a jury is an historical anomaly, predestined to probable futility and failure. Underlying this view is an understanding that administrative agencies are responsible for developing efficient methods of carrying out legislative policy; they develop experience and expertise through adjudication in order to best serve the public interest in executing legislative mandates. It is thus necessary for agencies to “keep open the channels for the reception of all relevant evidence which will contribute to an informed result.” Section 505 of the Administrative Agency Law, 2 Pa.C.S.A. § 505, (“Section 505”) reflects this consideration: Agencies shall not be bound by technical rules of evidence at agency hearings and all relevant evidence of reasonable probative value may be received. Reasonable examination and cross-examination shall be permitted. (Emphasis supplied). Moreover, from a purely practical standpoint, in dealing with countless thousands of compensation claims — as, for example, social security, workmen’s compensation, or unemployment compensation — it is unrealistic to expect hearing officers to apply the strict exclusionary rules of evidence. A widely acclaimed report on administrative practice in New York State several decades ago observed: [Successful application of the law of evidence requires trained and experienced judges ... Its successful application requires also trained and experienced counsel. The law of evidence as applied in judicial proceedings is not self-executing ... It is a frequent characteristic of [state] quasi-judicial proceedings that the hearing officer is not a trained lawyer; nor would mere legal training of hearing officers assure expertness in the field of evidence. It is another frequent characteristic of quasi-judicial proceedings that the parties are not represented by counsel. The essential conditions of the successful application of the rules of evidence are therefore lacking, in many instances. For those instances at least, administrative adjudication must be able (as in my judgment it is) to operate satisfactorily without legal requirement that the exclusionary rules of evidence be applied. Against this background, however, is the countervailing consideration of fairness and due process for the litigants before the agency. Whether and how to admit and accord weight to hearsay evidence is perhaps the most common due process question raised in judicial review of such administrative decisions. Unfortunately, the resolution of this issue is entirely without uniformity in the various jurisdictions across the country. Professor McCormick, in his penetrating one-volume study on the law of evidence, persuasively argues for elimination of the restrictions against admission of hearsay in administrative tribunals: Many reasons support the open admission of hearsay and other legally incompetent evidence in administrative hearings. Foremost among them is the fact that the exclusionary rules do not determine the probative value of the proferred evidence. Professor Davis, the leading proponent that hearing officers should make no distinction between hearsay and non-hearsay evidence makes the point this way: “[T]he reliability of hearsay ranges from the least to the most reliable. The reliability of non-hearsay also ranges from the least to the most reliable. Therefore, the guide should be a judgment about the reliability of particular evidence in a particular record in particular circumstances, not the technical hearsay rule with all its complex exceptions.” [Davis, Hearsay in Administrative Hearings, 32 Geo.Wash.L.Rev. 689 (1964)]. To require that a trial examiner refuse to admit hearsay makes no sense where there is no jury to protect and the trier of fact is equally exposed to the evidence whether he admits or excludes it. Admission without a ruling — as long as the evidence has some element of reliability — does no harm and can prove more efficient than the requiring of a ruling which may later be held erroneous. Discarding the exclusionary rules of admission eliminates the need for the parties to interpose protective objections — the objections being preserved by their briefs to the examiner or agency — and relieves the examiner of making difficult rulings before the evidence is available. It assures a competent yet not necessarily an unduly long record and might well avoid the need to reopen the record. Hearsay, of course, is not subject to current, in-court cross-examination but that limitation affects the weight the evidence carries, not its admissibility. But McCormick continues with the following admonition: Nevertheless, the more difficult — and often crucial — question for the hearing officer is the determination of whether he should rely upon hearsay evidence in reaching his decision. The examiner’s concern is with the reliability or probative worth of the evidence. Jury trial rules of evidence exclude hearsay on the theory that it is untrustworthy unless within an exception. The party against whom the evidence is admitted can neither confront nor cross-examine the out-of-court declarant to test its probative worth. In Pennsylvania, the seminal case attempting to reconcile these apparently competing interests was McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617, (1918), in which we considered the evidentiary standards embodied in the then current workmen’s compensation law: The act permits liberal investigation, by hearing and otherwise; but, after all the data has been gathered without regard to technical rules, then the proofs must be examined, and that which is not evidence within the meaning of the law, must be excluded from consideration; that is, to say, when all the irrelevant and incompetent testimony has been put aside, the findings must rest upon such relevant and competent evidence of sound, probative char acter as may be left, be this either circumstantial or direct. 261 Pa. at 326, 104 A. at 622. The holding in McCauley effectively reiterated a rule of law originally articulated by the New York Court of Appeals in Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916), also a workmen’s compensation case. The statute there provided that “common law or statutory rules of evidence” were not binding. The court interpreted this to mean that although the commission could “accept any evidence that is offered, still in the end there must be a residuum of legal evidence to support the claim before an award can be made.” 218 N.Y. at 440, 113 N.E. at 509. This came to be known as the “legal residuum” rule, and it persists in effect to this day in a number of jurisdictions, including Pennsylvania. The residuum rule represents an effort to ensure fairness in administrative hearings by insisting that a decision be supported by legally competent evidence. But the rule has been severely criticized by scholars, including McCormick, Wigmore, Benjamin, and Davis. McCormick notes that despite the rule’s laudable concern for the right to confrontation and cross-examination in the truth determining process, What it fails to consider ... is that much “legal” evidence within the hearsay exceptions is equally untested. Yet the latter is accepted even in jury trials because of its probable reliability. Consequently the residuum rule’s mechanical prohibition against uncorroborated hearsay is unsound. Its sound objectives can be secured through the sensitivity of the hearing officers and the wise application of [a] substantial evidence test which measures the quanti ty and quality of the supporting evidence regardless of its category or label. Moreover, the effect of the residuum rule is to create an evidentiary standard actually stricter than that adhered to in jury trials. As articulated by Professor McCormick: In a trial before a lay jury hearsay evidence admitted without objection is given its natural, probative effect and may be the sole support for a verdict. But under the residuum rule, hearsay cannot support a decision by an expert administrator. The rule ignores the reliability of technically incompetent evidence, rendering all such evidence ineffective unless corroborated. Professor Davis suggests an alternative to what McCormick calls “a rigid rule for denying credibility to uncorroborated hearsay evidence”: The alternative is to allow agencies and reviewing courts to exercise discretion in determining in the light of circumstances of each case whether or not particular evidence is reliable even though it would be excluded in a jury case. In the exercise of such discretion, agencies and reviewing courts will in many circumstances find that particular hearsay or other so-called incompetent evidence has insufficient reliability. Rejection of the residuum rule does not mean that an agency is compelled to rely upon incompetent evidence; it means only that the agency and the reviewing court are free to rely upon the evidence if in the circumstances they believe that the evidence should be relied upon. The classic judicial formulation upholding administrative reliance on some hearsay evidence was expressed by Judge Learned Hand in 1938: [The examiner] did indeed admit much that would have been excluded at common law, but the act specifically so provided . . . [N]o doubt, that does not mean mere rumor will serve to ‘support’ a finding, but hearsay may do so, at least if more is not conveniently available, and if in the end the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs. Judge Hand applied his formulation to the residuum rule in a later case: We should be the first to agree that, if it appeared that no evidence had been offered that rationally established the facts, the indictment ought to be quashed; because then the grand jury would have in substance abdicated. But that is in no sense true of hearsay, as is shown by both the numerous exceptions, based upon the inaccessibility of any better evidence, and by decisions that have again and again held that it may be as dependable a reliance at a trial as any other evidence; the only condition upon its use being that the opposite party shall not object to it. Indeed, we conduct our most serious affairs upon the strength of it; it would be impossible to carry on a day’s business without it. The resulting situation: that is, that hearsay will serve, only when supplemented by some modicum of first-hand evidence, has nothing to commend it. And Professor Davis, in the course of his criticism of the residuum rule, underscores the need for a more rational evidentiary standard in administrative adjudication: The reliability of evidence cannot be adequately judged by wholesale thinking that ignores circumstances but must be determined in the light of variable circumstances, including the supporting evidence or lack of it, the opposing evidence or lack of it, the purpose of the proceeding, the practical consequences of a finding either way, the degree of precision needed, the degree of efficacy of cross-examination with respect to a hearsay declaration, and many other such factors. Ill In Pennsylvania, the residuum rule is embodied in the guidelines set forth in Walker, supra, which evolved from a line of decisions beginning with McCauley, supra : 1. Hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board. (Citations omitted). 2. Hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record, but a finding solely on hearsay will not stand. (Citations omitted). 27 Pa.Cmwlth. at 527, 367 A.2d at 370 (emphasis in original). As observed by McCormick, the legal residuum rule creates a standard effectively more stringent than that prevailing in jury trials, where unobjected to hearsay is accepted as competent evidence. The Board of Review, in its criticism of the Walker rule, dwells at length upon the observation that the principle expressed in paragraph 2 (that unobjected to hearsay would not alone be considered competent evidence) does not accord with precedent if carefully traced back through the lines of cited authority in cases upon which Walker rests and in later cases supporting Walker. But the distinction between hearsay formally objected to and hearsay unobjected to, with respect to the competency of evidence in administrative hearings, is, we believe, completely artificial. The Board’s discussion is thus tangential to the more fundamental questions associated with criticism of the residuum rule. What it does demonstrate however, is the artificial construction of the Walker rule itself. Walker preserves the technical objected to/unobjected to distinction in paragraph 1, but, in recognition of the premium thereby placed upon knowledge of legal rules which cannot possibly be attributed to unrepresented litigants, it distorts in paragraph 2 the ordinary legal standard regarding competency of unobjected to hearsay. This seems a rather awkward means of assuring that a finding is based upon at least some evidence which has been tested for competency. We do not fault the objective of Walker and other versions of the residuum rule, i. e. the prevention of administrative decisions based on insubstantial evidence. But this objective can be better achieved by developing simple guidelines for judging whether evidence is sufficiently reliable to support a finding, rather than by creating inflexible mechanical requirements. Our concern with Walker is thus similar to the scholarly criticism of the residuum rule noted above. Walker fails to distinguish between reliable and unreliable hearsay, thus hampering the administrative decisionmaking process; while it equally fails to thoroughly protect due process rights, because unobjected to hearsay, no matter how unreliable, if corroborated, no matter how slight the legal evidence, may provide the substantial evidence needed to support an administrative finding. Corroboration in and of itself is not dispositive of the issue of reliability. If available, corroboration may be a factor in determining reliability, but corroboration or the lack thereof neither ensures nor precludes reliability. The standard is, therefore, at the same time too rigid and too indefinite. Accordingly, this Court must articulate more appropriate guidelines for the evaluation of hearsay evidence in administrative hearings. IV In promulgating a standard for administrative fact finding, some states have simply adopted Judge Hand’s suggestion that “the kind of evidence on which responsible persons are accustomed to rely in serious affairs” is likely to be sufficient to support an administrative finding, whether hearsay or otherwise. Another standard, found in the applicable section of the federal Administrative Procedure Act provides: Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence. A sanction may not be imposed . . . except as supported by and in accordance with the reliable, probative, and substantial evidence. . . A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. (Emphasis supplied). But what makes evidence “reliable,” and “substantial”? The leading early case on the subject, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938) left confusion in its wake. The Court in Consolidated Edison defined “substantial evidence” in administrative proceedings as, “such relevant evidence as a reasonable mind might accept to support a conclusion.” 305 U.S. at 229, 59 S.Ct. at 216. Although this appears to mirror Judge Hand’s classic formulation, the Court went on to say that “mere uncorroborated hearsay or rumor does not constitute substantial evidence.” 305 U.S. at 230, 59 S.Ct. at 217. (Emphasis supplied). The latter phrase has been cited hundreds of times by state and federal courts in support of the various versions of the residuum rule. It was more accurately explained, however, in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), the leading recent case dealing with the question of “substantial evidence” in administrative deci-sionmaking: The contrast the Chief Justice was drawing [in Consolidated Edison ], at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material “without a basis in evidence having rational probative force.” This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case. The plaintiff in Perales had been denied social security disability benefits on the basis of sworn affidavits of treating physicians. The Supreme Court concluded: A written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. 402 U.S. at 402, 91 S.Ct. at 1428 (emphasis supplied). The medical reports in Perales were examples of hearsay with strong circumstantial guarantees of reliability. They were prepared by acknowledged experts who were solicited for their expert opinions; thus, the issue of factual error was not critical, nor would cross-examination have been likely to discover anything specifically erroneous. The re ports were written immediately after the examinations, so faulty memory of the declarant was not a concern. And the doctors had no interest adverse to the claimant, so the likelihood of bias, insincerity or deliberate falsehood in the hearsay declarations was remote. Whether these guarantees, in and of themselves, would have been sufficient to establish the reliability of the documents is not, however, made entirely clear in the opinion, for the claimant’s failure to exercise his right to subpoena was made an additional component of the decision to consider the hearing documents “substantial evidence.” We conclude, however, that in some proceedings circumstantial guarantees of reliability will suffice to render uncorroborated hearsay competent. This conclusion is supported by the reasoning of the Court of Appeals for the Ninth Circuit in the recent case of Calhoun v. Bailar, 626 F.2d 145 (9th Cir. 1980): . . . [T]he classic exception to strict rules of evidence in the administrative context concerns hearsay evidence. Not only is there no administrative rule of automatic exclusion for hearsay evidence, but the only limit to the admissibility of hearsay evidence is that it bear satisfactory indicia of reliability. . . Thus, it is not the hearsay nature per se of the proffered evidence that is significant; it is its probative value, reliability and the fairness of its use that are determinative. Richardson v. Perales, supra, illustrates the appropriate analysis. . . The Court [in Perales] rejected a rigid rule and held that the proffered hearsay evidence could constitute substantial evidence. In doing so, the Court explained that there could be no blanket rejection of administrative reliance on hearsay evidence irrespective of reliability and probative value. Although [Perales] arose in the context of a Social Security hearing, various courts have followed its reasoning to hold that hearsay, if reliable and credible, could constitute substantial evidence in a variety of administrative settings. . . We too reject any per se rule that holds that hearsay can never be substantial evidence. To constitute substantial evidence, hearsay declarations, like any other evidence, must meet minimum criteria for admissibility— [they] must have probative value and bear indicia of reliability. . . Although not controlling, the Federal Rules of Evidence 803(24) standards for the admission of hearsay not specifically covered by any exception but bearing “circumstantial guarantees of trustworthiness” may be of assistance. 626 F.2d at 148-49 (citations omitted; emphasis supplied). Hearsay, even in a court of law, may be “competent” if it fits into any recognized exception to the rule. Hearsay exceptions generally, whether codified or found in case law, are designed to facilitate the admission of probative evidence while minimizing the risks of unreliability. Once evidence is admitted under a recognized exception, the hearsay rule is no longer applicable, and the evidence is given full probative weight. The Federal Rules of Evidence carry the principle of trustworthiness underlying the recognized exceptions one step further by codifying the “residual” exception, supra, n.27. The notion that uncorroborated hearsay may be “legally competent” is not revolutionary. As the Advisory Committee on the Federal Rules indicates, supra n.28, the common law recognized this fact for centuries before evidence rules were codified. Hearsay, then, is certainly legally competent and could be substantial evidence in support of an administrative finding if it falls within the statutory or common law exceptions to the traditional hearsay rule. Our reference to the “residual” exception in the Federal Rules, however, underscores the fact that hearsay may also be “competent” if it has circumstantial guarantees of reliability equivalent to those implicit in the recognized exceptions. Although indicia of reliability must ultimately be evaluated on a case by case basis, several factors typically would be significant: E. g., whether the hearsay statements are contradicted by direct testimony; whether the statements are sworn or unsworn, written or oral, signed or anonymous; whether the declarant is disinterested or is potentially biased; or whether the hearsay is corroborated. The type of hearsay offered is also a factor: For example, some documents, such as reports and itemized statements of charge from licensed professionals, may be typically more trustworthy than documents of more subjective content. If hearsay is introduced by live testimony, the credibility of the witness is, of course, to be considered. The element of necessity for the use of hearsay is equally critical, as the requirements of the “residual” exception to the Federal Rules suggest. Inquiry must be made whether the declarant is available to testify or whether other, perhaps better, evidence is available if the declarant is unavailable. We conclude that a general rule of competency, using the recognized hearsay exceptions as a touchstone and a standard for reliability, is especially appropriate in the informal administrative setting. Testing reliability on a case by case basis, the hearing officer should be permitted to evaluate indicia of reliability, or the lack thereof, by simple commonsense analysis, with the recognized exceptions or equivalent circumstantial guarantees of trustworthiness as guidelines. V We believe that a standard of trustworthiness and necessity for the use of hearsay in support of administrative findings satisfies the more flexible due process requirements of the informal administrative setting. The U. S. Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969) observed that in administrative hearings, The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be condemned to suffer grievous loss, and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. 397 U.S. at 263, 90 S.Ct. at 1018 (citations omitted). Professor McCormick phrases the relevant inquiry as follows: How important or unimportant is the subject matter in relation to the cost of acquiring “better” evidence? Many examples are available. If the out-of-hearing declarant is readily available and the question involves the respondent’s livelihood or security — as is often the case in loyalty and deportation matters — hearsay by itself carries little weight. If, however, the matter is but one of thousands of compensation claims — as in social security and workmen’s compensation cases — and declarant’s appearance would be relatively costly or time-consuming, hearsay alternatives such as letters or other written evidence might prove decisive. Due process principles no doubt require that a party be afforded a reasonable opportunity to challenge the reliability of adverse hearsay evidence. What constitutes a “reasonable opportunity” will depend, however, upon the balancing of interests as articulated in Goldberg v. Kelly, supra. In Richardson v. Perales, supra, the claimant’s “reasonable opportunity” to challenge the hearsay documents was the right to subpoena the declarants. But providing a “reasonable opportunity” may require no more than the hearing officer’s fulfillment of an obligation to probe the adverse party in order to ascertain the seriousness and credibility of the challenge. If the party’s challenge raises a credible reason to question the reliability of hearsay evidence, the referee may conclude that further investigation is required and therefore assert his authority to subpoena the declar-ant. This decision, however, must vary according to the nature of the hearing, the type of evidence in question, and the reasonableness of the burden thereby placed upon the adversary or the conduct of the administrative proceeding. VI Our standard, then, must serve (1) the governmental interest in summary administrative adjudication, i. e. informality and simplification in routine hearings, (2) the interest of all parties in ensuring proper evaluation of the reliability of hearsay evidence as a critical aspect of the fact finding process, and (3) the claimant’s interest in having due process rights effectively preserved by appropriate opportunities to challenge the reliability of adverse evidence. We begin by rejecting in administrative proceedings a purely technical distinction between objected to and unob-jected to hearsay which serves neither to separate reliable, probative evidence from that which is of little or no probative worth, nor to protect fundamental due process rights. We similarly reject any other technical basis for evaluation of admitted evidence. Any evidence, whether corroborated or not, if relevant and reliable, should be capable of supporting a factual finding. Thus: 1. Hearsay evidence is generally admissible. 2. Hearsay evidence will be accepted as competent if it falls within the statutory or common law exceptions to the hearsay rule, or has equivalent circumstantial guarantees of trustworthiness and is more probative on the point for which it is offered than any other evidence which the proponent could reasonably be expected to procure under the circumstances of the case. 3. The hearsay proponent carries the burden of making a prima facie showing of competence before the evidence can be used to support a finding. In administering the above standard, fairness must be the touchstone. The rules of practice and procedure governing hearings before referees in unemployment compensation cases, promulgated pursuant to Section 35 of the Administrative Agency Law, 71 P.S. 1710.35, provide at 34 Pa.Code 101.21: (a) In any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties. (Emphasis supplied) At the very least, the referee must advise an uncounseled claimant of his right to have an attorney, to offer witnesses, and to cross-examine adverse witnesses. Moreover, once a party contradicts hearsay evidence, the referee has an affirmative duty to afford him a reasonable opportunity to challenge the reliability of the document or testimony at the time of its admission. Whether or not the adverse party asserts such a challenge, some foundation for the reliability of hearsay must be established, unless apparent on its face. If the reliability of the hearsay, evidence is subject to question either because of the claimant’s challenge or a lack of foundation, the referee must decide in light of all the circumstances whether live testimony is necessary. Finally, the referee must set forth the evidentiary basis for his decision, whether it be live testimony (or other direct evidence), hearsay standing alone, or a combination of the two. VII Upon review of the record before us and in light of the pertinent administrative rules and common law requirements, we conclude that the referee’s conduct of the hearing below was insufficient. In disregard of the Board’s own regulation (34 Pa.Code § 101.21, supra), the referee failed to advise the uncounseled claimant of her rights. She was given virtually no meaningful opportunity to challenge the hearsay documents, upon which employer’s entire case was based, much less cross-examine the declarants. Moreover, although employer made no attempt to lay a foundation for reliability of the hearsay documents, the referee failed to put employer’s evidence to any test of reliability. The referee also fell short of the regulatory mandate by failing to aid claimant’s efforts to articulate her challenge. When employer’s representative began reading the exhibits into the record, claimant attempted to interrupt the presentation but was cut off by the referee: QC: May I say something. R: Let him finish please, you could make an objection. (R. 20a). Rather than being instructive, the referee’s comment may well have prevented this and later attempts to dispute the reliability of the hearsay evidence. At the end of the reading of the first exhibit, the referee, without addressing claimant, simply announced that the record would show employer’s submission of Exhibit 1. Claimant, having been rebuffed in her one attempt to interpose a challenge to the veracity of the documents, thereafter sat quietly while twelve more exhibits were read into the record. Under the statute, and, in fact, by any conscientious standard, we would expect the hearing officer to ask an unrepresented claimant whether there was any objection to the introduction of each exhibit as it was offered. Yet, no effort whatsoever was made by the referee to solicit claimant’s view in an orderly manner designed to test the credibility of the documents. At the end of the submissions, the referee sought to dismiss claimant without any questions or further proceedings. When claimant again asked, “May I say something?,” the referee replied in a manner designed to abbreviate claimant’s reply, rather than to elicit probative testimony. Not surprisingly, claimant launched into a confused and convoluted account of the episodes detailed in the exhibits, in a vain attempt to answer all at once the myriad accusations therein. Instead of making a sincere effort to unravel claimant’s testimony and clarify her grounds for challenging employer’s adverse evidence, the referee, aided by employer’s counsel, in effect cross-examined her for what appears from the record to be the contrary purpose of reinforcing employer’s case. VIII The employer’s documents lack the indicia of reliability sufficient to provide them with prima facie circumstantial guarantees of trustworthiness. They were unsworn, subjective statements prepared at the employer’s request, and were directly contradicted by claimant’s live testimony. Moreover, the declarants may well have been biased against claimant, and no effort was made to demonstrate the necessity for relying solely upon hearsay documents when credibility was the central issue in dispute. Since its case was based entirely on unreliable hearsay, employer failed to sustain its burden of proving wilful misconduct. Moreover, the referee’s conduct of the hearing fell far short of protecting the rights of the unrepresented claimant. Accordingly, the Order of the Commonwealth Court is affirmed. O’BRIEN, C. J., and NIX, J., concur in the result. ROBERTS, J., filed a concurring opinion, in which LARSEN and FLAHERTY, JJ., join. FLAHERTY, J., filed a concurring opinion. . Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 724(a). . 43 P.S. § 802(e) provides: An employee shall be ineligible for compensation for any week— (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work as defined in this act. . Ceja v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 41 Pa.Cmwlth. 487, 399 A.2d 807 (1979). . The employer’s case consisted of eight reports of claimant’s alleged misconduct and the disciplinary proceedings which followed; three notices of disciplinary measures; and two written eyewitness accounts of claimant’s behavior on December 6 and 7, 1976, which occasioned her dismissal. . At the time of the hearing, Section 2, 28 P.S. § 91b provided. A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. (Emphasis supplied). The Uniform Business Records as Evidence Act, 28 P.S. §§ 91a 91d, subsequently was repealed and reenacted as 42 Pa.C.S.A. § 6108, effective June 27, 1978. . The burden of proving willful misconduct is the employer’s. McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978). . J. Wigmore, Evidence § 4b, p. 31 (3d ed. 1940) (hereinafter, “Wig-more”). . Report of the Attorney General’s Committee on Administrative Procedure, p. 70, S.Doc. No. 8, 77th Cong., 1st Sess. (1941). .Act of April 28, 1978, P.L. 202, No. 53, Section 5, 2 Pa.C.S.A. § 501-508, 701-704, substantially a reenactment of Act of June 4, 1945, P.L. 1388, 71 P.S. 1710.1 et seq. At the time of the hearing, this provision appeared at 71 P.S. § 1710.32. . Robert M. Benjamin, Administrative Adjudication in the State of New York, 174-75 (1942) (footnotes omitted) (hereinafter “Benjamin”). Professor Wigmore made a somewhat more acerbic observation: [T]he jury-trial system of Evidence-rules cannot be imposed upon administrative tribunals without imposing the lawyers also upon them; and this would be the heaviest calamity. The complex mass of Evidence-rules cannot be applied except by technically trained lawyers; and, furthermore, many of these technical lawyers will belong to the over-technical type. No one can wish that the petty snarling contentiousness over technicalities of trial tactics, so typical of jury-trial, should be transferred to the administrative tribunals. And yet, how can the system be transferred without transferring the only persons who can use it? Wigmore, 4b p. 36. (Emphasis in original.) . McCormick, Law of Evidence, Section 350 at 841—42 (2d ed. 1972). (Emphasis supplied) (hereinafter, “McCormick”). . Id. at 843 (footnotes omitted). . See, inter alia, Ogden Iron Works v. Industrial Co., 102 Utah 492, 132 P.2d 376 (1942); Young v. Board of Pharmacy, 81 N.M. 5, 462 P.2d 139 (1969). . McCormick, supra, at 847-48; Davis Administrative Law Treatise, (1958, 1970 supp.) (hereinafter, “Davis”), Vol. 2 § 14.10; Benjamin, 189-92; 1 Wigmore § 4b, p. 39. . McCormick, supra, at 848. . Id. . Id. at 847. . 2 Davis, supra, § 14.10, p. 293. . NLRB v. Remington Rand, 94 F.2d 862, 873 (2d Cir. 1938) cert. denied 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540, rev’d on other grounds 110 F.2d 148 (2d Cir. 1940). (Emphasis supplied) . United States v. Costello, 221 F.2d 668, 677-78 (2d Cir. 1955). . 2 Davis, supra, § 14.10, p. 294. . Walkers cited authority is traced to Kozlowski v. Unemployment Compensation Board of Review, 191 Pa.Super. 83, 155 A.2d 373 (1959) which holds only that findings of fact cannot be based upon incompetent testimony properly objected to, presumably allowing unobjected to incompetent evidence to support factual findings. Bleilevens v. State Civil Service Commission, 11 Pa.Cmwlth. 1, 312 A.2d 109 (1973), cited by claimant in support of Walker, is similarly traced to a contrary holding in Nesbit v. Vandervort and Curry, 128 Pa.Super. 58, 193 A. 393 (1937). . See, e. g. Reynolds Metals Co. v. Industrial Commission, 98 Ariz. 97, 402 P.2d 414 (1965). . 5 U.S.C. § 556(d) (emphasis supplied) Pub.L.89 554, Sept. 6, 1966, 80 Stat. 386; Pub.L.94-409, § 4(c), Sept. 13, 1976, 90 Stat. 1247. This “standard” has also been adopted in other jurisdictions. See e. g. Neuman v. Baltimore, 251 Md. 92, 246 A.2d 583 (1968), holding that hearsay evidence may be the sole basis of an administrative decision if it is credible and has sufficient probative force. . Cf. Reynolds Metals Co., supra, n.23. . Calhoun was an appeal by a U.S. Postal Service superintendent challenging his discharge from employment on the ground that administrative findings were not supported by substantial evidence. The Postal Service had relied substantially on affidavits of appellant’s subordinates. Upon review of the record, the Circuit Court concluded that the Postal Service had not erred in considering the affidavits as substantial evidence. . The Federal Rules of Evidence “catchall” or “residual” hearsay exception (Rule 803(24», makes hearsay competent if: ... not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. Rule 803(24) is repeated verbatim in Rule 804(b)(5). The former applies when the declarant is available and the latter when the declarant is unavailable. . The Advisory Committee on the Federal Rules of Evidence explained the exceptions as follows: The present rule proceeds upon the theory that under appropriate circumstances, a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor. The present rule is a synthesis of them, with revision where modern development and conditions are believed to make that course appropriate. (Notes of Advisory Committee on Proposed Rules, Rule 803, 28 U.S.C.A. p. 584 (West 1975).) . The application of the “residual” exception under the Federal Rules occurs where evidence complies with the spirit, if not the letter, of one or more recognized exceptions, U. S. v. McPartlin, 595 F.2d 1321, 1350 (7th Cir., 1979), or where reliability equivalent or superior to that of recognized exceptions can be demonstrated. See generally, United States v. Iaconetti, 406 F.Supp. 554 (E.D.N.Y.1976), cert. den. 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977) (District Court Opinion by Weinstein, J., whose superb treatise on evidence similarly addresses the subject at 4 J. Weinstein, Evidence 803(24)[01] (1975). . 11 Moore’s Federal Practice VIII at p. 208 notes: A mechanical and unreasoned application of the hearsay rule that denies vital, trustworthy evidence is not warranted. In referring to circumstantial guarantees of trustworthiness which are equivalent to those which support the specifically enumerated exceptions, Rules 803(24) and 804(5) are not referring to any one specific quantifiable degree of trustworthiness. Within the specifically authorized exceptions there is a great variation in the level of reliability... Each case must be judged on its own unique facts and the issue of admissibility should be determined in light of the basic purposes of the rules of evidence, which, according to Rule 102, are to facilitate truth ascertainment in order fairly to resolve controversies brought to the courts for adjudication. . In the following cases hearsay was found sufficiently trustworthy and necessary to be submitted to a jury under the residual hearsay exceptions of the Federal Rules: Furtado v. Bishop, 604 F.2d 80 (1st Cir. 1979): Deceased attorney’s affidavit admitted against prison official in prisoner’s civil rights suit (distinguished attorney who understood significance of sworn statement; thus not likely to make cavalier accusations; was totally disinterested party); U. S. v. Hitsman, 604 F.2d 443 (5th Cir. 1979); College transcript with registrar’s seal admitted, although no authenticating witness as required under UBREA; U. S. v. Nick, 604 F.2d 1199 (9th Cir. 1979): Child’s statement that he was sexually assaulted (corroborated by physical evidence); U. S. v. White, 611 F.2d 531 (5th Cir. 1980): U. S. treasury claim form admitted (preparer subject to criminal prosecution if falsified; was a wealthy individual not likely to file false claim for what was a small amount of money); U. S. v. Friedman, 593 F.2d 109 (9th Cir. 1979); Summary of Chilean immigration records prepared by Chilean official (unambiguous rendering of simple facts; no reason to falsify). . McCormick, supra, at 845-16. . The issue before the Court in Kelly was termination of welfare benefits. In such cases, the Court held, an absolute right to confrontation and cross-examination of adverse witnesses is essential to preservation of the right to procedural due process. 397 U.S. at 270, 90 S.Ct. at 1021. The Court, however, has made it abundantly clear that confrontation and cross-examination, even in criminal trials, is not always essential to due process. See, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), Harlan, J., concurring. . Section 506 of the Unemployment Compensation Act, 43 P.S. § 826; 1936 Second Ex.Sess., Dec. 5, P.L. (1937) 2897, art. V, 506. . To the extent that Commonwealth Court decisions hold otherwise, they are disapproved. See, e. g., Unemployment Compensation Board of Review v. Tumolo, 25 Cmwlth. 264, 360 A.2d 763 (1976); Paoloco v. Unemployment Compensation Board of Review, 10 Pa. Cmwlth. 214, 309 A.2d 594 (1973). . The doctors in Perales, supra, as hearsay declarants, had no interest adverse to that of the claimant. Thus the Court in Perales distinguished Goldberg v. Kelly, supra, where, as here, credibility and veracity were at issue, and where the importance of confrontation and cross-examination were therefore enhanced. In such cases the referee must be especially sensitive to the quality of the evidence and the claimant’s challenge thereto in determining whether cross-examination of the declarant will substantially increase the likelihood of an informed decision. “The duty of the referee and the Board is not fulfilled merely by hearing the witnesses who voluntarily appear.. . If ... additional testimony is required, it is the duty of the referee or the Board to call witnesses who can supply it.” Phillips v. Unemployment Compensation Board of Review, 152 Pa.Super. 75, 30 A.2d 718, 723 (1943).

Opinion by Mr. Justice Linn, , The point for decision is whether a mortgagor’s right of redemption must be exercised before the sheriff’s hammer falls, or whether the right may be exercised after such sale but before acknowledgment and delivery.-of the sheriff’s deed following the sale. The point has not heretofore been expressly passed on by this court. The court below held that the right to redeem could be exercised after the sale but before the acknowledgment and delivery of the sheriff’s deed. The correct decision is of considerable importance in the conduct of such sales and the effect to be given to them. It happens that the Court of Common Pleas of Berks County recently reached the opposite conclusion: Federal Farm Mortgage Corporation v. Howard, 47 D. & C. 64, and denied redemption after the property had been knocked down to the sheriff’s vendee. It is elementary that “all judicial sales must be open to free and fair competition” (Slingluff v. Eckel, 24 Pa. 472, 474) and that courts will reject any procer dure easily adapted to frustrate free and fair judicial sales. The defendant, Broad Street Hospital, made two mortgages to the Pennsylvania Company for Insurances on Lives and Granting Annuities, the first one dated May 2,1927, and the second one, dated January 10,1938, and defaulted on both. On November 5, 1945, judgment for $73,946.67 was entered on the bond accompanying the second mortgage. On November 8, 1945, Pennsylvania Comphhy issued a writ of fieri facias, returnable on the first Monday of December, 1945. On November 27,1945, after the writ was issued but before the return day, the suit was marked to the use of the appellant, The Jefferson Medical College of Philadelphia! On December 3, 1945, at the sheriff’s sale on the fi. fa., the mortgaged property was sold to the appellant for $124,500. On December ll, 1945, on defendant’s motion, the court granted a rule to show cause why the sheriff’s, sale to appellant should not be set aside on the ground that after the sale, defendant had tendered the amount of the judgment with interest and costs. Appellant answered responsively but the court made the. rule absolute. This appeal then followed. The reason given by the learned court for setting aside the sale was that the “owner of mortgaged real estate has the right to redeem it until the acknowledgment and delivery of the Sheriff’s deed, and that he is not finally foreclosed by the Sheriff’s hammer alone.” The court stated that there were no “equities” “sufficient to warrant setting aside the Sheriff’s sale,” no gross inadequacy of price, “no misleading or fraud, and there are no technical defects.” The fact, then, is that the record disclosed no defect that would justify the order appealed from. If there is no defect in the record, we must sustain the appeal and reverse the order unless the right to redeem remained after the sale of defendant’s equity. The appellant contends that the mortgagor’s right to' redeem ended when the property was knocked down to appellant; -that the only right then left in the mortgagor was to have possession during the period between the sale and the delivery of the deed: compare Hardenburg v. Beecher, 104 Pa. 20. The mortgagor’s equity of redemption is the title remaining in him subject to the mortgage, and the right of redemption is the right to require the holder of the mortgage to receive payment of the matured debt and to satisfy the lien. We have no statutes regulating the exercise of this right of redemption. No statute author izes redemption after the sale. The court was therefore without power to make the order allowing redemption after the sale. In Parker v. Dacres, 130 U. S. 43, Harlan, J., said, at p. 47, “In the view we take of this case it is unnecessary to express an opinion whether the provision relating to sales under execution, properly interpreted, gave a right of redemption after sale under a decree of foreclosure. If it did not, the decree below. must' be affirmed, for a right to redeem, after sale, does not exist unless given by statute. Counsel for the plaintiff speaks of a common-law right of redemption after sale that attaches in the absence of any statutory provision on the subject. We are not aware of any such right existing at common law, or in the system of equity as administered in the courts of England previous to the organization of our government ...” • Our statutes authorize the taking of land in execution and provide that the purchaser at sheriff’s sale shall take the land (as provided in the Act of 1705,1 Sm. L. 57, section 6, 21 P.S. 791) “for such estate or estates as they were sold or delivered,, clearly discharged and freed from all equity and benefit of redemption . . or (as provided in section 66, Act of June 16, 1836, P. L. 755, 12 P. S. 2447) the land “shall be quietly and peaceably held and enjoyed by the person'to whom the same shall be sold or delivered, and by the heirs, successors or assigns of such persons, as fully and amply, and for such estate and estates ... as he or they for whose debt or duty the same shall be sold or delivered might, could, or ought to do at or before the taking thereof in execution.”: The sheriff’s sale was conducted in the usual way. The accepted view of a sale by auction is stated by Williston, Contracts, sec. 29, vol. 1, p. 68. “The auctioneer may more accurately be said to invite offers than himself to be an offeror, and the law has adopted this doctrine. Since the bargain is incomplete until the hammer falls, a bidder may therefore retract his bid .until that time. The same point is involved in decisions turning-on the right of the auctioneer, to withdraw an article offered for sale; and for the same reason, until the hammer falls, the auctioneer may withdraw, unless it has been advertised or announced that the sale shall be without reserve . . See Restatement, Contracts, section 27, vol. 1; Stover v. Rice, 3 Whart.21; Fisher v. Seltzer, 23 Pa. 308; Stroup v. Raymond, 183 Pa. 279, 38 A. 626; Acker v. Snyder, 250 Pa. 57, 95 A. 325. When the sheriff accepted the bid, the purchaser acquired a right to a deed on complying with the terms of sale and assumed the obligation of complying with those terms: Dickson v. McCartney, 226 Pa. 552, 75 A. 735. The appellant purchaser’s position was, in substance, that of a purchaser by articles- of agreement; the purchaser had acquired an equitable interest which would become a complete title on complying with the terms of the sale: compare Stover v. Rice, 3 Whart. 21; Slater’s Appeal, 28 Pa. 169. For many years it has been the general understanding in this Commonwealth that the sheriff’s sale takes place when the hammer falls. Recently in St. Louis B. & L. Ass’n v. Hamilton, 319 Pa. 220, 179 A. 604 (1935), in considering the time when a sale takes place, Mr. Justice Schaffer said: “Certainly in common parlance the word ‘sale’ when used. in connection with a sheriff’s vendue means the time when he knocked down the property to the bidding purchaser.” • " As the learned court below declined to rule that the sale took place when the hammer fell (and, in view of the opposite conclusion reached by the Court of Common Pleas of Berks County, referred to above) we may consider the cases at some length. Young’s Appeal, 2 P. & W. 380 (1831) appears to be the earliest reported case in which this court considered the subject. Property had been knocked down to Young but before a deed was delivered the court set aside the sale on the sole ground that the debtor had tendered payment after the sale but before delivery of a deed. Young appealed; In support of its ruling, the court be low said: “The purchaser undoubtedly has his rights. The sale, in this case, was fairly made; but on the return-day . ; . and before the deed is acknowledged, the debtor comes into court, offers to pay the debt, and asks to retain his lands; ■ The creditors do not object; the purchaser alone says he has acquired a right to the land. There does not appear, to be any peculiar hardship in the case of the purchaser who pays his money and is disappointed in getting his deed, by reason of the sale being set aside by the court. Thé sale is not complete until the deed is acknowledged in court. Until the acknowledgment of the deed the debtor is not divested of his estate, and it seems to me- that if the debtor pays the debt before the purchaser has acquired a legal right to the land, the equity of the debtor to retain is stronger than that of the purchaser, who insists upon the forfeiture.” On appeal, this was disapproved. Ross, J., in specifying the error of the court below, stated: “The opinion delivered by the court below is predicated upon false principles and arrives at erroneous conclusions. It is not supported by law, equity or expediency. The bona fide purchaser, .at a public 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 vendee certainly should have the advantage of a purchase at a price below the value, when he is bound by a purchase at a price greatly exceeding the true value: . . . In order to set aside a sheriff’s sale, there must be satisfactory evidence of fraud or abuse of power in the sheriff: . . . These general observations are made with the hope that any practice in opposition to these principles, which may have arisen in some of the courts, as to sheriffs’ sales, may be corrected. It is not a sound exercise of the discretionary power of a court to destroy the vested rights of a fair purchaser, either from feelings of sympathy for the defendant in the execution, or because the court may not see any peculiar hardship in the bona fide purchaser being arbitrarily deprived of his just and equitable right. The practice, if any such exist, as well as the principle laid down in the opinion of the court below, are highly inexpedient ; and if there were no other reason, this alone should be sufficient to prevent such a practice being recognized as law. It is indeed calculated to affect sheriffs’ sales very injuriously. Who would become bidders on such terms? Who would purchase and pay his money at sheriff’s sale, if the defendant in the execution could at any time before the acknowledgement of the deed upon payment of the debt retain the property and rescind the sale? The purchaser, under such circumstances, would not only lose the opportunity of purchasing other property but in some cases would be compelled to pay interest on money borrowed, for the purpose of paying for the property purchased at sheriff’s sale. The practice would indeed be pregnant with ruin and injustice. Is there any cause either in law or equity, in which any court has thought proper to rescind a contract, on the application of the party in default? Or, can any case be produced (except the decision in question) where a bargain made in good faith has been rescinded against the will and consent of the party who has performed everything required of him, and who insists on a specific execution of the terms on which he bought? Individually I do not entertain a doubt that the practice authorized by the opinion of the court below, cannot be supported upon any principle, either of law, equity or expediency. Although this point has not been argued, I have nevertheless felt myself bound to express a decided opinion on the subject, before I proceeded to consider the motion to dismiss the appeal.” Chief Justice Gibson concurred. The other three justices declined .to express an opinion because the point had not been argued. While the opinion expressed was not necessary to the dismissal of the appeal, it was not a chance expression of view but one deliberately made for the guidance of future sheriffs’ sales. Between the date of Young’s Appeal (1831) and the decision in B. & L. Ass’n v. Hamilton, in 319 Pa. 220, 179 A. 604 (1935), the rule has been frequently repeated with approval. In Stewart v. Freeman, 22 Pa. 120, 123, Lewis, J., said: “The rule of caveat emptor applies with such strictness to a purchaser at sheriff’s sale, that he is bound to pay the purchase-money although he may discover that the title is altogether worthless. . . . The time when the sale is made, not the date of the sheriff’s deed, nor of its acknowledgment, is the period at which the state of the possession and of the records becomes material . . . Hence it follows that although bis title is not perfect before the acknowledgment of the sheriff’s deed, so as to enable him to obtain possession, it is sufficiently so to vest in him an interest in the land and to bind him for the money. It is therefore sufficient to protect him in the payment of it.” In Slater’s Appeal, 28 Pa. 169, it was said that the purchaser at a sheriff’s sale has “an inceptive interest in the soil, which may be bound by a judgment, and which, when perfected by payment and a conveyance, gives the encumbrancer, by relation, the benefit of his security to the extent of the whole estate: ...” Hoyt v. Koons, 19 Pa. 277, 279, was trespass for cutting timber, both parties claiming the land under sheriffs’ sales under different judgments. Black, C. J., said, “The plaintiff below bought the land in dispute at sheriff’s sale in November, 1842; the deed was acknowledged on the 23d of January, 1844. After the sale to the plaintiff the same land was again sold as the property of the same person, but under another execution and judgment. At this second sale one of the defendants was the purchaser, and had his deed acknowledged on the 11th January, 1843. The only question which the record presents is, whether a title acquired by a sheriff’s sale can be defeated by a subsequent sale to another person, when the deed to the last purchaser is first acknowledged. We answer it here, as it was answered by the Common Pleas, in the negative. The sale divests the title of the defendant in the execution, and the-judgment creditors must either set it aside, or look to the fund for payment of their liens.” In Gibson v. Winslow, 38 Pa. 49, 54, an action of ejectment, Thompson, J., said, “The moment the land was struck down, the interest of the purchaser attached; The deed is but the legal evidence of the sale, and relates back to the moment it was made . . .” In Penna. S. V. R. Co. v. Cleary, 125 Pa. 442, 451, it was held that a purchaser at a sheriff’s sale acquired an inchoate title by his accepted bid entitling him to institute condemnation proceedings against a railroad company entering after the sale but before the delivery of the sheriff’s deed. Williams, J., said: “It is well settled however that a purchaser at sheriff’s sale acquires an inchoate title in the land purchased by virtue of his bid, and its acceptance by the sheriff. The subsequent acknowledgment and delivery of the deed provides the purchaser with the evidence of his title which relates to, and takes effect as of the date- of the sale recited in. it. ■ The title-of M. J. Cleary to this land vested at the time of his purchase from the sheriff on the 11th of July, 1885, notwithstanding the fact that he was not provided with the legal evidence of his title until 1888.” ■ In Stroup v. Raymond, 183 Pa. 279, 282, a sheriff’s sale was set aside on the joint request of the debtor, the creditor and an intending bidder on their averment that the sale took place under a mutual mistake concerning an incumbrance. In holding that to be sufficient ground for'setting aside the sale, Dean, J., referred to Young’s •Appeal and said: “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 sale; the other three judges declined to express an opinión, as to this part of the case, because it had not been argued. But the opinion of Boss, J., concurred in by Gibson, C.' J., has ever since been followed by this court, as the law ... The opinion there states: ‘The bona fide purchaser at a sheriff’s sale of land, the moment it is knocked off to Mm, if he complies in all respects with the conditions of sale, instdntly 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 this court had then been of opinion that a: sheriffs sale did not foreclose the equity, but that acknowledgment and delivery of a deed were required, it would have been unnecessary to proceed further with the suit; it would only have been necessary for the debtor, the creditor and the intending bidder (as they were the petitioners) to get together, hand the necessary amount to the creditor and so end the proceeding and thereby deprive the purchaser of his purchase. As the opinion in that case was "written by Justice Dean, and as he declared that the rule of Young’s Ap .peal “has ever since, been followed by this court as the law,” we may at this point refer to an earlier case, .relied on by the defendant, in which Justice Dean also wrote the opinion: Collins v. London Assurance Corp., 165 Pa. 298, 30 A. 924." It appeared in that case that the plaintiff, owner of mortgaged premises, had them insured by the defendant j after foreclosure sale but before : delivery of'the sheriff’s deed, fire destroyed the premises. The plaintiff sued for the insurance; the trial turned on .whether the.policy had become void by the clause “any change ... in .the interest, title or possession of the subject of the insurance.” The case involved no controversy- between the mortgagor and the mortgagee or the purchaser at the sale.-; The decisive fact was that the mortgagor was still lawfully in possession; she could not have been ejected until after the delivery of the sheriff’s deed. By its express words, the policy covered as long as- she had possession. The principle applied in deciding the case was that the party in possession at the time of the fire had an insurable interest. Obviously, that decision is not inconsistent with what we are now deciding. Nor is the obiter dictum on page 312 of Derr v. New York Joint Stock Land Bank, 335 Pa. 309, 6 A. 2d 899, controlling. The record shows that the appellant acquired the same rights that any other bona fide .purchaser at the sheriff’s sale, would have acquired. In measuring the extent of those rights, it is of no consequence that after the fi. fa. was placed in the hands of the sheriff by the mortgagee,- the proceeding was marked to appellant’s use. There is evidence that during the period when the mortgages were in default, the Pennsylvania Company, mortgagee, sought a purchaser for the property “con ditioned upon our [the Pennsylvania Company] obtaining title.” The Pennsylvania Company agreed on September 25,1915, to sell to the appellant if, as Mr. Sayre testified, his Company obtained title by foreclosure. Instead of carrying out that plan, which was begun by the issuance of the fi. fa., they consummated their arrangement by marking the execution to the purchaser’s use. The purchaser’s position as a sheriff’s vendee is •therefore no different from what it would have been if appellant had purchased at the execution without taking an assignment of the judgment. The bidding was actively competitive, the competing bidder being Mr. Lieberman. Mr. Jacoby, vice president of defendant’s Board of Trustees, testified that defendant had not authorized anyone to bid on its behalf. The competitive bidding was recognized by the court below in saying, “When Mr. Lieberman bid at the sale, he had no authority from the defendant’s Board of Directors: he was bidding on authority from Dr. Wolffe and the staff of defendant’s doctors.” Dr. Wolffe was not .a member of defendants staff; the court added that after the sale,.the Board of Directors “ratified the arrangement suggested, by Dr. Wolffe, ...” ' To adopt the view of the learned court below, would establish a rule militating against sheriffs’ sales by keeping away competitive bidders; they would be deterred by the ease -with which an unsuccessful bidder could take the property away from the successful bidder by collusive arrangements with- the debtor, made between the time of the sale and the delivery of the sheriff’s deed. We think the rule to be adopted should outlaw the possibility of such fraud. Apparently, in this case, the mortgages'were-long in default; the mortgagor could not pay; the Pennsylvania Company was willing to take less than its debt; its broker interested- the appellant as a purchaser. It was only after, the property was about to be sold by the sheriff that the arrangement for raising money referred to in the opinion of the court below, was made. We have no doubt that this arrangement was made in good faith by Mr. Lieberinan and the physicians who authorized him to bid, but the fact that such • an arrangement was possible indicates how easily parties fraudulently inclined might take from a successful bidder the property purchased. The tender made -at bar in the court below was, as the court said, of “. . . money coming from another medical group : headed by Dr. Wolffe that is interested in making some use of défendant hospital.” Defendant was not tendering its own money. In effect, a new purchaser was being substituted for the sheriff’s vendee. ■ It also illustrates the value of the warning made in Young’s AppcaZ .against the adoption óf rules conducive to wrongful interference with sheriffs’ sales. If asked what harm there is in allowing full payment to this creditor, the answer is that the court should adopt the rule most likely to keep all sheriffs’ sales “open to free and fair competition”; fraudulent collusion should not be made easy. It is a fact, in some cases, resulting from the provisions of statutes, in others, from established rules of the common law, and in others, depending on contracts (Collins v. London Assurance Corp., supra, is an example) that both the mortgagor, whose equity has been sold, and the purchaser, who bought it, have rights and obligations between the date of sale and the acknowledgment and delivery of the deed; these cases do not now require discussion. We should perhaps add that we have examined the references made in the briefs to decisions and statutes of other states but found they afforded little or no aid in our review of the record before us because of differences in the law in other states. Nor shall we refer to general statements quoted from text books, beyond saying that Vol. 1, Glenn on Mortgages, sec. 100, p. 620; Vol. 3, Wiltsie on Mortgage Foreclosure, sec. 1203, p. 1813; Vol. 36, Am. Jur. sec. 183, p. 784; see also, 35 C. J. Sec. 103, p. 67, cited by appellant, contain statements supporting the rule we have adopted. Order reversed; record remitted with instructions to discharge the rule; costs to bé paid by appellee. Mr. Justice Hoeace Steen and Mr. Justice Jones are of opinion that since there is no. prior appellate court decision in Pennsylvania on the question here involved, which is therefore one of first impression, the better rule, in cases where the creditor himself becomes. the purchaser of a property sold at sheriff’s sale on the creditor’s execution, would be to require the sheriff to accept payment of the debt, interest and costs in satisfaction of the writ if tendered to him at any time prior to his acknowledgment of a deed for the property. On the bond accompanying the first mortgage, judgment for $100,177.15 was entered on December 7, 1945, in favor of the use-plaintiff. The total of both judgments against defendant was $174,-123.82. The order provided: “AND Now, this 8th day of January, 1946, the defendant’s rule to set aside the Sheriff’s sale is made absolute; the use-plaintiff is directed to accept the defendant’s tender of the debt, interest, and costs; and the Sheriff is directed to return to the use-plaintiff the amount of its deposit money, on which the defendant shall pay to the use-plaintiff interest at the rate of six per cent. From the date of deposit,’ together with such costs as the use-plaintiff has incurred in these proceedings.” The court below granted a supersedeas. Italics supplied. Italics supplied. This refers as much to the effect of the fall of the hammer as to the element of consideration. Mr. Binge, á real’estáte broker, testified that, on behalf of the Pennsylvania Company, he sought a purchaser of the property and brought the subject to the attention of Jefferson Medical College: “A. I submitted it to a religious order from Reading, I submitted it to tbe veterans’ group, ü. S. Navy, tbe public bealtb service, and to tbe Osteopatbic Hospital. Q. For one reason or another, all of those negotiations fell through? A. That’s right. Q. And after they had failed, you then submitted the proposition to Jefferson? A. Yes, sir. Q. Jefferson did not ask you to submit the proposition or did not take the initiative? A. No. Q. You approached Jefferson? A. I approached Hr. Hooper; I had never known him before, but I thought he could use it. Q. When was that? A. In January 1945. Q. What happened? A. After I approached Mr. Hooper he asked me to send him full details. I contacted Mr. Sayre and Mr. Breen, and told them what I had done. They said, ‘Supply Jefferson with full details.’ Q. And then Jefferson made an offer pursuant to your conferences with representatives of Jefferson? A. Yes, sir.” President Judge Schaeffer expressed tMs very well in Federal Farm Mortgage Corp. v. Howard, 47 D. & C. 64, at page 70. “Judge Ross, in Young’s Appeal, supra, stated that the practice of permitting the execution defendant to pay the debt after the sale and before the acknowledgment and thus to rescind the sale would'be ‘calculated to affect sheriffs’ sales very injuriously.’ It would tend to discourage the attendance of bidders at the sale. And it would open the door to the evil practice of permitting disappointed bidders to enter into a collusive agreement with the defendant in the execution by which such bidder could after the sale offer the defendant a sum greater than the highest price bid and thus obtain the property. It would destroy the finality of sheriffs’ sales.”

Opinion by Mr. Justice Drew, The plaintiff insurance company seeks by this bill in equity to rescind a contract of life insurance with disability benefits, entered into between it and the defendant Harry Brandwene, under which the defendant Rose Brandwene, wife of the insured, is beneficiary. The bill alleges that the policy was procured by fraud and misrepresentation on the part of the insured, and prays that the policy be declared void and that the defendants be ordered to deliver it to the plaintiff for cancellation upon receipt of the amount of premiums paid, with interest. After a hearing, the learned chancellor entered a decree nisi in accordance with the prayers of the bill, which decree the court below later made absolute. Defendants appealed. Fraud is, of course, a familiar source of equity jurisdiction, and it is well settled that one who has been in duced to enter into a formal contract by the fraud of the other party may in a proper case secure the assistance of a court of equity, which will order the fraudulent party to surrender for cancellation the instrument evidencing the contract: Sutton v. Morgan, 158 Pa. 204; Am. Union Life Ins. Co. v. Judge, 191 Pa. 484; Wagner v. Fehr, 211 Pa. 435; DeCosta v. Scandret, 2 P. Wms. 170; Phœnix Ins. Co. v. Bailey, 13 Wall. (U. S.) 616; see Black, Rescission and Cancellation (2d edition), sections 476, 643. Thus, where the execution of a contract of insurance has been induced by fraudulent misrepresentations of the insured, the insurer may secure its cancellation: Am. Union Life Ins. Co. v. Judge, supra; DeCosta v. Scandret, supra; Mut. Life Ins. Co. of N. Y. v. Rose, 294 Fed. 122; Jefferson Standard Life Ins. Co. v. McIntyre, 294 Fed. 886; N. Y. Life Ins. Co. v. Sisson, 19 F. (2d) 410 (W. D. Pa.); Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114, 32 L. R. A. (N. S.) 298; Pac. Mut. Life Ins. Co. v. Glaser, 245 Mo. 377, 45 L. R. A. (N. S.) 222; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Home Life Ins. Co. v. Zuribowitz, 87 Atl. (R. I.) 25; see Phœnix Ins. Co. v. Bailey, supra; Am. Trust Co. v. Life Ins. Co. of Va., 173 N. C. 558; Couch, Insurance, section 1412. The burden of proving the fraud is, of course, upon the party who alleges it (Livingood v. N. Y. Life Ins. Co., 287 Pa. 128; Kuhns v. N. Y. Life Ins. Co., 297 Pa. 418; Campdon v. Continental Assurance Co., 305 Pa. 253), and it must be established by clear and satisfactory evidence: Suravitz v. Prudential Ins. Co., 261 Pa. 390; Pusic v. Salak, 261 Pa. 512; Campdon v. Continental Assurance Co., supra; McCreary v. Edwards, 113 Pa. Superior Ct. 151. These principles cannot be disputed, but, appellants argue, the evidence does not support a finding that the alleged representations were made fraudulently, or that the plaintiff relied upon them in issuing its policy. The defendant Harry Brandwene applied for the policy which is the subject of this suit on October 28, 1929. He certified, in His application, to the correctness of his answers to the examining physician, and stipulated that the company might rely on them to be true. In the application, Brandwene stated, in reply to questions, that he had not, in the preceding five years, consulted a physician for any ailment, except “Dr. C. L. Mattas, in the year 1926 for cold in head.” This answer was so false that it could hardly have been more so. As a matter of fact, Brandwene had consulted Dr. Mattas in the two years preceding the making of his application at least five times for various ailments, including arthritis and inflammation of the muscles, and had at various times in the five-year period been treated by other physicians for more serious illnesses. In 1925, he was confined to his home with influenza; during this illness, he was attended by a Dr. Wormser and required the services of a nurse. This illness lasted from April 25th to May 23d, and he subsequently claimed and received disability benefits for this period from an insurance company. Later in the same year, he entered a hospital for a week and had his tonsils removed by a Dr. Bishop; as a result he was unable to work for about two and a half weeks, and for the time thus lost he also received disability benefits. Again, in 1928, he was sick in bed at home with influenza from February 10th to February 20th; during this period, he was treated by a Dr. Morris. On account of his illness, he claimed and received, upon another insurance policy, benefits for total disability during a period of almost five weeks. In March, 1931, within the two-year period in which the policy could be contested, Brandwene'applied to plaintiff for benefits for permanent total disability caused by an enlargement of the heart. The plaintiff’s investigation of the claim disclosed the above facts, indicating that Brandwene’s statements in his application for the insurance policy had been false, whereupon it tendered back the amount paid as premiums and attempted to rescind the policy. Brandwene refused, and this suit followed. It is conceded by defendants that under our decisions (Rigby v. Metropolitan Life Ins. Co., 240 Pa. 332; Livingood v. N. Y. Life Ins. Co., supra; Koppleman v. Commercial Cas. Ins. Co., 302 Pa. 106; Applebaum v. Empire State Life Assurance Society, 311 Pa. 221), such inaccurate statements in an application for a life insurance policy, as to the employment of other physicians than those named, are to be deemed material representations. Even if this concession -were not made, the facts of this case would present no room for an argument to the contrary. The illnesses for which Brandwene consulted other physicians were not trivial, and the plaintiff was entitled to know of them. While it may be that plaintiff would not have refused to insure Brandwene because of these illnesses, certainly it is not improbable that had it known of them the company would have rejected his application for insurance. The facts as to the applicant’s more serious illnesses were, therefore, matters material to the risk, of which the company should have been informed. However, defendants contend the false answers were given by inadvertence. This argument imposes too heavy a burden on human credulity. The learned chancellor found that the untruthful statements were made deliberately, and we do not see how he could have done otherwise. We cannot believe that when Brandwene signed the application for insurance he had forgotten that three times in the previous five years he had suffered periods of total disability: once as a result of an operation in a hospital and twice as a result of attacks of influenza which confined him on each occasion to his home for over a month. Moreover, he must have been aware that he had consulted Dr. Mattas many more times than he said he had. In failing to disclose these material facts Brandwene did not deal fairly with the company; there is no room for any other conclusion than that his statement in the application that he had consulted a doctor only once in the past five years, and that for a cold in the head, was deliberately false and fraudulent. No testimony was produced by the defendants to show that plaintiff did not rely upon the falsehood in the application. Invoking the rule that a misrepresentation, to be sufficient ground for rescission of a contract, must be relied upon by the other party (Lakeside Forge Co. v. Freedom Oil Works Co., 265 Pa. 528; Kuhns v. N. Y. Life Ins. Co., supra), defendants contend that they are entitled to a decree in their favor because plaintiff did not produce any affirmative testimony that it relied upon the falsehood in the application in executing the policy. On the other hand, defendants produced no evidence to show that plaintiff did not place such reliance upon the untruthful statement in the application. The decree in favor of the plaintiff was, therefore, properly entered, for, since the making of material misrepresentations was proved, it will be presumed, in the absence of facts to show the contrary, that the contract was made in reliance thereon: March v. Metropolitan Life Ins. Co., 186 Pa. 629; Rigby v. Metropolitan Life Ins. Co., supra; Moncur v. Western Life Indemnity Co., 269 Pa. 213; Applebaum v. Empire State Life Assurance Society, supra; see Restatement, Contracts, section 479; Pomeroy, Eq. Jur. (4th edition), section 891; Black, Rescission and Cancellation (2d edition), section 677. This is the necessary rationale of these cases, for in each of them the company, having proved material misrepresentations, but not having offered any testimony that it had relied upon them, was held entitled to binding instructions, the plaintiff not having produced evidence that the misrepresentations were not relied upon. The decree of the court below is affirmed; costs to be paid by appellants. The jurisdiction exercised by courts of chancery on the ground of fraud was expressly bestowed upon the courts of common pleas by the Act of June 13, 1840, P. L. 666, section 39, as extended by the Act of February 14, 1857, P. L. 39; see Custis v. Serrill, 303 Pa. 267; Leahey v. Leahey, 309 Pa. 347; Clauer v. Clauer, 22 Pa. Superior Ct. 395.

The opinion of the Court was delivered by Rogers, J. This is an action to recover the value of jewellery shipped by the agent of the plaintiff, at New Orleans, and consigned to him, as is alleged, on board the ship Georgian, Eldridge master; of which the defendant was owner. Defence was made on two grounds; 1. By a denial of any shipment of jewellery, and consequently that none could be embezzled; and, 2. Fraud, by concealing from the captain that jewellery was shipped, and fraudulently representing that the trunk contained glass — an article of much inferior value. On an attentive examination of the charge, we think the jury would be warranted in believing, that, in the opinion of the court, the only material inquiry was, whether the goods had been em bezzled; which, of course, includes the question of delivery into the custody of the master of the ship. “ In the inquiry whether the goods were embezzled,” say the court, “ the most important and difficult part is to know whether or not the goods were put on board at New Orleans. The question is, was a trunk containing $1600 worth of jewellery put on board at New Orleans ? If a trunk containing all the jewellery was put on board there, there can be no dispute that it was not delivered; and, if it was purloined, defendants are liable.” After calling the attention of the witnesses to the testimony, the court proceeds 'to say; “ these are the only points I shall call your attention to;” thus leaving the jury to infer, and doubtless they must have so understood it, that the only matter worthy of investigation, was the delivery of the goods, and their consequent embezzlement. If this was the ordinary case of the loss of goods intrusted to a common carrier, there is nothing exceptionable in the charge; but it is not so; for it involves another question, equally as important as the first, attended with equal, if not more uncertainty; that is, the alleged fraud arising from the misrepresentation of the plaintiff’s agent. The defendant complains, and with great justice, that the attention of the jury was not called to this part of the defence, in such a manner as to make it a prominent matter for investigation. The uncontradicted testimony is, that the jewellery, if delivered at all, was contained in a trunk of the kind generally used in carrying shoes, and was labelled “ William D. Rapp—glass—this side up— with care.” The latter is equivalent to an assertion that the trunk contained glass; and, if untrue, it was such a fraudulent misrepresentation as will prevent a recovery against the owner of the ship, even if the jewellery was purloined by the captain, or any one of the crew. A common carrier is answerable for the loss of a box, or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance. Even that principle has been doubted; but the better opinion is, that' the carrier would be responsible. And this is reasonable; because he can always guard himself by a special acceptance, or by insisting to be made acquainted with the general nature of the articles, and of their value, before he consents to receive them. If he omits this, he shall not escape responsibility, because of his own negligence. But the rule is subject to a reasonable qualification; and if the owner be guilty of any fraud, or imposition, in respect to the carrier, as by concealing the value or nature of the article, or deludes him by his own carelessness in treating the parcel as a thing of no value, he cannot hold him liable for the loss of his goods. Such an imposition destroys all just claim to indemnity; for it goes to deprive the carrier of the compensation he is entitled to, in proportion to the value of the article intrusted to his care, and the consequent risk he incurs; and it tends to lessen the vigilance the carrier would otherwise bestow. 2 Kent’s Com. 603. The qualification of the rule is as important to be observed, as the rule. It is absolutely necessary for the protection of carriers; who would otherwise be exposed to great frauds. With what show of justice can a man ask to be paid for an article of great value, when-he has induced the carrier, by a false assertion, to believe that it is of much inferior value ? It is just, when he asks compensation from the innocent owner, to hold him strictly to his own declarations. He has no right, in order to cheapen the freight, which is the usual inducement, to expose the owner fo an increased risk; as must inevitably be the case, where the nature and value of the article are Studiously concealed. I take a distinction between the owner and the wrong-doer; for, undoubtedly, notwithstanding the conduct of the plaintiff, the person who purloined the goods would be responsible for their value, either criminally or in a civil suit. But it would be unjust to make the owner pay damages for a loss which may have been the consequence of the fraudulent act of the shipper, by inducing a relaxed attention, or may have been perpetrated by a confederate of his own. In addition to the captain and crew, there were passengers on board. Indeed, this is the alleged reason that the bill of lading, and the label on the trunk, were different from the articles which the trunk really contained. In cases of common carriers where there is no notice, the better opinion seems to be, that the party who sends the goods is not bound to disclose their value, unless he is asked. But the carrier has a right to make the inquiry, and to have a true answer; and, if he is deceived, and a false answer is given, he will not be responsible for any loss. If he makes no inquiries, and no artifice is used to mislead him, then he is responsible for-any loss, however great the value may be. Story on Bailm. 362. But when the shipper voluntarily informs the carrier of the value or of the nature of the article, what need of further inquiry ? Surely he cannot complain that the carrier believes his statement to be true. If untrue, it would be a violation of every principle of common justice, to cast the responsibility upon the innocent owner, merely because his agent puts faith in the declarations of the shipper. And what difference is there, in effect, between the case put, and labelling a box or trunk as containing an article differing in nature and value from its true character ? The one is as likely to delude the carrier as the other, and is as likely to be used as a means of fraud. After calling the attention of the jury to what it would appear was thought the only matter worthy of consideration, the court say, “I am requested by the defendant’s counsel to charge you, that it was not the duty of the captain of the ship Georgian, to ask what were the contents of the trunk, confided to his charge, at New Orleans; that it was the duty of the shipper to cause to be placed on the bill of lading the nature and character of the contents of the trunk; that the shipper having put jewellery and watches in a trunk ordinarily used for carrying shoes, and marked it * glass,’ would prevent a recovery, if full information was not given of its contents.” To these questions, the court answer: “ If the captain wished to know what was in the trunk, he was bound to inquire, unless deception was used to mislead him; that it was not the shipper’s duty to put upon the bill of lading the nature and character of the contents of the trunk. And if it was so marked, and no communication made of its contents, it is answered affirmatively.” It cannot be said that these answers, taken together, ai’e wrong in the abstract; yet we cannot but feel that they are not such answers as were calculated to give the desired information to the jury, and that connected with the remarks before made by the court, they tended to divert the attention of the jury from the turning point of the cause. It was his (the captain’s) duty, to inquire the contents of the trunk, unless deception was used to mislead; but what the deception was, is not explained. The court should have instructed the jury, that if they believed what was not disputed, that the trunk was marked “ glass, this side up, with care,” he was not bound to inquire the contents of the trunk; that the assertion of the shipper, that it contained glass, dispensed with any further inquiry as to its contents. The party has a right to a plain and intelligible answer, predicated on the facts in evidence. And if after giving the charge a fair construction, it tends to mislead the jury, by inducing them to believe that there is but one point of defence, when in truth there are two, and the point omitted the most uncertain, the cause should be remanded for another hearing. The trunk being labelled “ glass,” it is incumbent on the shipper to explain, why it was so marked; and this the witness has endeavoured to do, by saying it was purposely so done, for reasons given by him, and that the contents of the trunk were made known to the captain. But this, which is the debatable ground, is positively denied; and some circumstances exist on both sides, which give a colour of truth to the respective statements. Whilst it is admitted, that public policy requires that common carriers should be held to an extraordinary responsibility, it is necessary to watch, with increased vigilance, the conduct of the owner of the goods. It should be free from the suspicion of fraud or deception. The carrier is in the nature of an insurer, and he has a right to a true account of the character and value of the goods he insures, and has a right to be protected against imposition or misrepresentation of the nature and value of the articles intrusted to his care. Judgment reversed, and a venire de novo awarded.

Opinion by Hoffman, J., This is an action in assumpsit to recover medical benefits allegedly due under the terms of a medical insurance policy. Appellant contends that the lower court improperly granted the appellee’s motion for judgment on the pleadings. On November 2, 1972, the appellant, Harvey Miller, applied for a “Major Medical Expense Policy” with the appellee, The Prudential Insurance Company of America (Prudential). The application, filed with Prudential’s agent, Martin Birnbaum, required the applicant to disclose whether he was covered under other medical expense policies with Prudential or any other company. The application also provided that “[t]he undersigned agrees ... (2) that no agent has the authority to modify any policy, to waive any of Prudential’s rights or requirements or to bind Prudential by making any promise or representation ....” Prudential issued the requested policy on November 18, 1972. The policy provided, in relevant part, as follows: “The Prudential Insurance Company of America will pay the benefits stated in this policy, in the event of sickness or injury as hereinafter defined, subject to all the provisions and exceptions contained herein .... B. Deductible Amount. The Deductible Amount applicable to any Benefit Period with respect to one sickness or one injury of a Covered Person shall be the Minimum Deductible Amount specified in the Policy Schedule except that if during such Benefit Period there are, with respect to the same sickness or injury, Other Medical Expense Benefits, as herein defined, for charges which are Eligible Expenses under this Policy, the Deductible Amount for such Benefit Period shall be the amount of such Other Medical Expense Benefits if such amount is greater than the Minimum Deductible Amount. As used herein, ‘Other Medical Expense Benefits’ means benefits provided for confinements, services, supplies or equipment by any other insurance or welfare plan or prepayment arrangement ....” While the policy was in effect, the appellant was hospitalized on three occasions. During this time, he received surgical and other medical services at a total cost of $9314.33. The appellant submitted the necessary documentation of the expenses, and requested payment in the amount of $6750.79. Because the appellant had received “other medical expense benefits” from Blue Cross and Blue Shield in the amount of $6393.34, Prudential agreed to pay only the total eligible expenses ($9314.33) less the deductible amount ($6393.34) or $2920.99. By the time the action commenced, Prudential had paid all but $578.26 of this amount. On June 14, 1974, the appellant filed a complaint in assumpsit claiming that further reimbursement was due under the terms of the policy. Prudential filed an answer and new matter alleging that the benefits received from Blue Cross and Blue Shield must be deducted from the eligible expenses pursuant to the terms of the policy. The appellant then filed a reply to new matter asserting that Prudential’s agent, Martin Birnbaum, specifically informed him that other medical expense benefits would not be deducted from the benefits due under the policy. On February 13, 1975, Prudential filed a motion for judgment on the pleadings. On May 22, 1975, the lower court granted Prudential’s motion, and entered judgment for the appellant in the amount Prudential admitted was due ($578.26). This appeal followed. Rule 1034(a) of the Pennsylvania Rules of Civil Procedure provides that “[a]fter the pleadings are closed, but within such time as not to delay the trial, any party may move for a judgment on the pleadings.” “A motion for judgment on the pleadings under Rule 1034 is in the nature of a demurrer and thus ‘all of the opposing party’s well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him ....’ Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174 (1966).” Enoch v. Food Fair Stores, Inc., 232 Pa. Superior Ct. 1, 4, 331 A.2d 912 (1974). (Emphasis omitted). See also Karns v. Tony Vitale Fireworks Corp., 436 Pa. 181, 259 A.2d 687 (1969); Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968). A motion for judgment on the pleadings is properly granted when the moving party’s right to prevail is so clear that “a trial would clearly be a fruitless exercise.” Goldman v. McShain, supra at 68, 247 A.2d at 458; Bata v. Central-Penn National Bank of Philadelphia, supra at 378, 224 A.2d at 178. Appellant’s sole contention is that the appellee has the burden of establishing that the exclusion from coverage was explained to him. Because this assertion requires proof outside the pleadings, the appellant maintains that the motion for judgment on the pleadings was improperly granted. Appellant relies on Hionis v. Northern Mutual Insurance Company, 230 Pa. Superior Ct. 511, 517, 327 A.2d 363, 365 (1974), where we stated: “... Even where a policy is written in unambiguous terms, the burden of establishing the applicability of an exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and that the effect thereof was explained to him. See e.g., Frisch v. State Farm Fire and Casualty Co., 218 Pa. Superior Ct. 211, 275 A.2d 849 (1971); Purdy v. Commercial Union Insurance Co. of New York, 50 Pa. D. & C. 2d 230, 235 (1971).” The general rule governing the construction of insurance policies is well-settled: “an insurance policy is to be construed most strongly against the insurer and liberally in favor of the insured so as to effect the dominant purpose of indemnity or payment to the insured, but this is where the terms of the policy are ambiguous or uncertain and the intention of the parties is therefore unclear. See, e.g., Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Beley v. Mutual Life Ins. Co., 373 Pa. 231, 95 A.2d 202 (1953); 43 Am. Jur. 2d §271.” Penn Air, Inc. v. Indemnity Insurance Company of North America, 439 Pa. 511, 517, 269 A.2d 19, 22 (1970). See also Celley v. Mutual Benefit Health and Accident Association, 229 Pa. Superior Ct. 475, 324 A.2d 430 (1974); Slate Construction Company v. Bituminous Casualty Corporation, 228 Pa. Superior Ct. 1, 323 A.2d 141 (1974). Specifically, exceptions to an insurer’s general liability are to be strictly construed against the insurer. See e.g., Slate Construction Company v. Bituminous Casualty Corporation, supra; Frisch v. State Farm Fire & Casualty Company, 218 Pa. Superior Ct. 211, 275 A.2d 849 (1971). In Hionis v. Northern Mutual Insurance Company, supra, the appellee sought insurance to protect him against loss to improvements made to his restaurant. His agent secured an insurance policy that provided for total reimbursement if the improvements were replaced, but only partial reimbursement if they were not. We construed the insurance policy to cover the total loss despite the fact that the appellee did not replace the improvements. In reaching this result, we noted that “[t]he plaintiff herein was a layman of apparently average intelligence- whose only objective in obtaining insurance was the security of protecting the financial expenses he had incurred in furnishing, improving and bettering the leased premises. His corroborated testimony indicates full trust in the agent’s accomplishment of those purposes.” Hionis v. Northern Mutual Insurance Company, supra, at 517, 327 A.2d at 365-366. We further noted that the language of the disputed clause was couched in technical and unclear terms, and that confusion as to coverage resulted upon reading the policy as a whole. Under these circumstances, we held that the insurance company should not be able to avoid coverage unless they established that the insured was aware of the exclusion. The instant case, however, differs from Hionis in several significant respects. First, the appellee had basic medical expense protection through his Blue Cross and Blue Shield policy. Purchasing a “major medical” expense policy, under these circumstances, is not intended to duplicate this coverage. Rather, it is intended to expand one’s health protection beyond the confines of the basic Blue Cross and Blue Shield program. In most instances, this coverage is necessary to handle the extraordinary expenses that occur as a result of prolonged illness or injury. Appellee’s intent in securing this policy, therefore, must have been to expand coverage, not to duplicate it. Second, the application for this policy required disclosure of other medical in surance. The appellant, therefore, was put on notice of the possibility of a deduction for identical benefits. Third, the language of the policy is clear and unambiguous in declaring that other medical benefits will be deducted from eligible benefits under this policy. Finally, the lower court found that the instant policy clearly calls the insured’s attention to the existence of the deductibility of other medical expenses benefits. The appellant’s major medical policy on its face covered his medical expenditures. The policy, however, provided for an exception to payment if the insured was otherwise reimbursed from other medical insurance policies. Because the appellant has already received full compensation for his medical expenses, it would be inequitable to require Prudential to demonstrate affirmatively that the insured was aware of the exception and had its effect explained to him. Under the circumstances of this case, such knowledge should be imputed to the appellant. Order affirmed. . The policy provided that 80% of the total eligible medical expenses less a standard deduction of $750 would be paid unless other medical benefits were received. If medical benefits greater than $750 were received, they would be deducted instead of the standard deduction. . Although the policy required payment of 80% of the eligible expenses less the deductible amount, Prudential apparently admits liability for 100% of that amount in this case. . In his reply to new matter, the appellant asserted that Prudential’s agent, Martin Birnbaum, represented that other medical benefits received would not be deducted from amounts received under this policy. The lower court determined that the agent was without authority to bind Prudential to this representation. In his appeal, the appellant does not contest this conclusion. . In Penn-Air, our Supreme Court found no ambiguity and stated: “We find no ambiguity in the clause before us, and, as the United States Court of Appeals for the 9th Circuit put it, ‘Courts do not resort to forced construction in order to fasten liability upon an insurer which, by the terms of the policy, it has not assumed.’ Standard Accident Ins. Co. v. Winget, 197 F.2d 97 (9th Cir. 1952).” Penn-Air, Inc. v. Indemnity Insurance Company of North America, supra, at 517.

Per cur. Then the fact must necessarily be ascertained by affidavits, to be laid before us. Shippen, C. J. added. It is justly taken for granted by the counsel in this court, that we possess the power of examining the proceedings of justices of the peace, in cases where the demand is under 40s., though the law does not give the party an appeal to the Court of Common Pleas. This point was solemnly determined by Kinzey, Chief Just, .many years ago, on a suit brought by Samuel Hasell, treasurer of the city corporation, on a bye law for measuring grain. The jurisdiction of superior courts, is only abridged by the express negative* words of a statute. To prevent gross injustice in a variety of [*480 instances, the power of reviewing the acts of inferior tribunals must necessarily be exercised by the Supreme Court. B. R. is not ousted of its jurisdiction but by express words, as where a statute says, such a matter shall finally be determined by the Quarter Sessions only, and that no other court shall intermeddle, certiorari lies notwithstanding these negative words. 2 Burr. 1042. 1 Bl. Rep. 231. T. Jon. 53. Sav. 134.

Mr. Justice Trunkey delivered the opinion of the court, May 3d 1880. The able and elaborate report of the master so well sustains his conclusion and the decree of the court, as to obviate labor in affirmance. The appellants concede 1. That where the owner sells stock and gets his price, and delivers the certificate, together with a blank bill of sale and irrevocable power of attorney, signed by himself, the title vests in the purchaser ; and 2. When a living owner signs such papers in blank, if he has not actually sold and got his price for the stock, by intrusting them to another, he delegates all his powers in respect to the stock, which being unlimited, he by estoppel will lose his property, if his agent abuses his confidence. They deny that such papers pass title by delivery, and allege, they are only symbols in the 'hands of the holder, affording no presumption that he is the owner of the stock, but-are consistent with an agency to act for the signer. The rights of a bona fide holder, as against the true owner of the stock, to whom the apparent owner has either sold or pledged, do hot depend on a negotiable character in the certificates, but rest on another principle; “ namely, that one who has conferred upon another by a written transfer all the indicia of ownership of property, is estopped to assert title to it as against a third person, who has in good faith purchased it for value from the apparent owner.” As a general rule, the vendor or pledgor can convey no greater right or title than he'has. Simply intrusting the possession of a chattel to another as a depositary, pledgee or other bailee, is insufficient to prevent the real owner reclaiming his property in case of an unauthorized disposition of it by the person so intrusted. The mere possession of chattels, without evidence of property or authority to sell from the owner, will not enable the possessor to give good title. But if the owner intrusts to another the possession of property, and also written evidence of title and power of disposition over it, as respects innocent third persons, he is deemed as intending it shall be disposed of at the pleasure of the depositary. If there be conditions on which this apparent right of control is to be exercised, not expressed on the face of the instrument, the case, in principle, is like that of an agent who receives secret instructions qualifying or restricting an apparent absolute power. If the owner of the stock voluntarily give certificates with blank assignment and power to make transfers, to his brokers, who betray the confidence reposed in them, such owner must suffer the loss, rather than innocent strangers whose money the brokers wmre thereby enabled to obtain. The principle applies to pledges of stock, and one who purchases from the pledgee may hold against the pledgor. And if the pledgee pledge it to secure payment of his own debt, the second pledgee may hold it as security till his debt be paid. “ A person loaning money on such certificate and power, has a right to believe that the borrower from whom he receives them has an absolute right to pledge the stock.” By commercial usage, a certificate of stock accompanied by an irrevocable pow'er of attorney, either filled up or in blank, is, in the hands of a third party, presumptive evidence of ownership in the holder. And where the party in whose hands the certificate is found is a holder for value, without notice of any intervening equity, his title cannot be impeached: Moore v. Metropolitan National Bank, 55 N. Y. 41; McNeil v. Tenth National Bank, 46 Id. 325; Pratt et al. v. Tilt et al., 28 N. J. Eq. 480; Bridgport Bank v. New York and New Hampshire Railroad Co., 30 Conn. 275 ; Mount Holly Turnpike Co. v. Ferree, 2 C. E. Green 117. The doctrine of these and kindred cases is notin the least shaken or qualified by the late decision in Shaw et al. v. The Merchants’ National Bank of St. Louis, S. C. U. S., 37 Leg. Int. 135, where the distinction between negotiable paper and bills of lading is pointed out with great clearness. Between such paper and certificates of stock, the distinction may be as wide. Perhaps, under similar circumstances, like rule would be applied to the holder of a stolen certificate as to the holder of a stolen bill of lading, but such is not this case. There the court say, “ It may be that the true owner, by his negligence or carelessness, may have put it in the power of a finder or thief to occupy ostensibly the position of a true owner, and his carelessness may estop him from asserting his right against a purchaser who has been misled to his hurt by that carelessness. But the present is no such case. It is established by the verdict of the jury that the' bank did not lose its possession of the bill of lading negligently. There is no estoppel, therefore, against the bank’s right.” The bill of lading having been stolen without fault in the owner, he was held entitled to recover against a purchaser who had reason to believe that his vendor was not the owner, but held it to secure the payment of an outstanding draft. Nothing in the case tends to show that if the owner had voluntarily given that bill of lading to another, he coüld have recovered against a purchaser for value who took it in good faith. We are convinced that the master adopted the true principle applicable to the papers in question; he neither held that they were negotiable, nor that it was a mere matter of the actual agency or authority of MacDowell & Wilkins. t Bo the same rules apply to these stocks as if they belonged to a living owner ? An executor holds under a trust; he is the minister or dispenser of the goods of the dead. He has the same property in the personal effects as the deceased, had when living. It is a general rule of law and equity, that an executor has an absolute power of disposal over the personal effects of his testator, and they cannot be followed by creditors nor legatees into the hands of the alienee. This results from the fact that in many instances the executor must sell in order to perform his duty in paying debts, &c.; and no one would deal with him if liable after-wards to be called to an account. Co-executors are regarded in law as an individual person ; and the acts of any one of them, in respect to the administration of the effects, are deemed to be the acts of all; as where one releases a debt or settles an account of a person with the deceased, or surrenders a term, or sells the goods and chattels of the estate, his act binds the others. An exception to this general power will be found in those cases only when collusion exists between the executor and purchaser. That the executor may waste the money is not alone sufficient to invalidate the sale; it must further appear that the purchaser participated in the devastavit or breach of duty in the executor. Thus, when the person to whom the executor passes the property, knows that the executor is acting in violation of his trust and in fraud of those interested in the due administration of the assets, the fraud vitiates the transaction, and the attempted transferís void. These familiar elements, the base of the master’s reasoning, are its sure support. Were McDowell & Wilkins defendants instead of their pledgees, the appellants’ argument, would be irresistible; for they participated in the wrongful act of George R. Wood. As executor, he could not make a valid sale or pledge of the stock as a security for or in payment of his own debt to them ; the transaction itself gave them notice of the misapplication, and involved them as participants in the breach of duty. Where money was obtained on the security of stock belonging to an estate, the borrowers, sons of the testator, represented that they owned and had the right to pledge it, but the transfer was made by the executrix to the lenders, who gave her a receipt stating the purpose for which they held it, and that it was to be returned to the estate if their debt was paid, the transaction gave the lenders notice, and the trust was not divested : Prall v. Hamil, 28 N. J. Eq. 66. An executor’s duty is not like that of a trustee, in whom property is vested, not for administration or sale, but custody and management for his eestuis que trust The party taking stock oil pledge from such trustee deals with it at his peril, for there is no presumption of a right to sell it, as there is in the case of an executor: Duncan v. Joudon, 15 Wall. 165; Shaw v. Spencer, 100 Mass. 382. “ The executor has the right to sell and transfer, and one who buys of him in good faith, and pays in money the price agreed upon, is not responsible for the application of the purchase-money:” Per Hunt, J., Leitch et al. v. Wells et al., 48 N. Y. 585. Letters of administration are always sufficient evidence of authority to transfer, because a sale, and transfer of stock is in the line of the duty of an administrator. The powers of an executor or administrator differ from those of an ordinary trustee; the duty of the latter being custody and management, of the former to dispose of the personal property, to pay debts, &c. Executors may use specific legacies to pay debts, if necessary: Bayard v. Farmers’ and Mechanics’ Bank, 2 P. F. Smith 232. The fact that the legal title to the stock was known to have previously been in the executor, and that the title of the holder appeared on its face to have been derived from him in his representative capacity, will not raise a suspicion, or put a purchaser on inquiry, for the reasoii that it is the executor’s primary duty to dispose of the assets and settle the estate: Prall v. Tilt, supra. We think the master was right in holding “that the same principle which prevails in the case of an absolute owner applies in the case of an executor who invests the holder with apparent ownership.” The defendants had a right to infer that MacDowell & Wilkins were the owners of the stock, although the certificates showed title in Challes S. Wood, and the blank assignments and powers were signed by George R. Wood as acting executor. They found McDowell & Wilkins clothed with apparent ownership. The testator had given George R. Wood the strongest expression of confidence in making him an executor of his will, thereby vesting absolute power in him to sell and transfer the stock in the line of his duty. He was acting executor. Neither his co-executors, nor others interested in the estate, had taken a step to prevent him from committing waste. The law casts no duty upon a purchaser to ascertain if the trusted executor of the decedent’s will is mismanaging the estate in fraud of creditors or legatees. The defendants had no knowledge of the collusive transaction between the executor and MacDowell & Wilkins, nor reason to believe that they, the pledgors, were not the real owners, as they appeared. If it be that the perfidious conduct of the executor results in loss to innocent persons, either those interested in the estate or the pledgees of the stock, it must fall on those whose interest he betrayed. Decree affirmed, at the cost of appellants, and appeal dismissed. Justice Paxson, dissented.

OPINION OF THE COURT POMEROY, Justice. Appellant was convicted in a non-jury trial of voluntary manslaughter for the death by stabbing of one Rodney Fields. After his post-trial motions were denied, appellant was sentenced to a term of imprisonment of one to ten years in a state correctional institution. This direct appeal followed. As verdict winner, the Commonwealth is entitled to have the evidence viewed in the light most favorable to it. Commonwealth v. Long, 460 Pa. 461, 463, 333 A.2d 865, 866 (1975); Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406 (1973); Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971). So viewed, the evidence established the following: On the evening of September 18, 1973, Albert Cropper, the appellant, entered the Star Bar in the City of Philadelphia in the company of Rodney Fields and one Harlem Brown. The three were old friends and had been shooting dice outside the bar, Fields being the loser. As they came into the bar Cropper and Brown were kidding Fields about having lost. After a few minutes Fields became upset, apparently because he felt that the others had unfairly stopped gambling while they were ahead of him in winnings. When Cropper refused to buy him a drink, Fields suggested that they gamble some more. The others acquiesced and the trio left the barroom. Returning to the bar a short while later, Brown and Cropper again joked with Fields about his losses. Fields again became angry and punched Brown in the lip; Brown’s reaction was merely to laugh because, as he testified at trial, “I knew the man.” Still angry, Fields again swung at Brown. This time Brown ducked, shoved Fields out of the way and headed for the door. Fields then became abusive towards Cropper and shouted at him, “If you even speak to me tomorrow I am going to kill you.” As if to punctuate his irritation, Fields grabbed a bar stool in one hand and shook it at appellant. Cropper, in turn, picked up another stool so as to be able to joust with Fields. After a standoff with the stools, both men dropped them and took to fighting. As they were tussling on the floor, Cropper was overheard by the bartender to exclaim, “I got something for you bad ass.” Soon afterwards the appellant drew a knife from his pocket and with it stabbed Fields at least four times. Although appellant and another witness testified that earlier on the day of the stabbing they had observed the victim paring his fingernails with a knife, at no time during the fatal struggle did Cropper or anyone else observe Fields with a knife drawn. Following the stabbing, appellant fled the Star Bar and tossed away the knife he had used. When later the same night he learned that Rodney Fields had died, he surrendered himself to the police. His arrest, indictment, trial and conviction ensued. At trial, the appellant asserted the defense of self-defense. The trial court concluded that the defendant had failed to establish that defense by a preponderance of the evidence. In so concluding, the court found, as stated in its opinion on the denial of post-trial motions, that the circumstances surrounding the homicide were not such as to justify a belief in the necessity to kill; that even if Cropper in fact entertained such a belief, it was not a reasonable belief in the circumstances; and that appellant violated his duty to retreat. Appellant contends that the court below erred in using the preponderance test for gauging whether he had established self-defense, and hence that a new trial is required; alternatively, he argues that as a matter of law the testimony established that the stabbing of Fields was indeed in self-defense, and hence that the judgment should be arrested and appellant discharged. We find no merit in either argument and will affirm. Because the crime with which the appellant was charged took place on September 18, 1973, the instant case is controlled by the provisions of the new Crimes Code, 18 Pa.C.S. § 101 et seq. (herein “the Code”), which became effective June 6, 1973. Specifically, in light of appellant’s claims, we must examine section 505 of the Code, which spells out the requirements for the defense of self-defense. 18 Pa.C.S. § 505. For the most part, section 505 of the Code merely codifies the common law of this Commonwealth. subsection (a) provides: “The use of force upon or towards another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” The operation of the defense of self-defense is limited by subsection (b) (2) of § 505, which proscribes the use of “deadly force” “unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat. . . . ” The same subsection goes on to provide, in clause (i), that the use of deadly force is not justifiable if the actor “provoked the use of force against himself in the same encounter,” and in clause (ii) that the actor must retreat if “he knows that he can avoid the necessity of using such force with complete safety.” Appellant’s argument for a new trial on the ground that the trial court erred in placing on him the burden of proving self-defense by a preponderance of the evidence is premised on the recent decision of this Court in Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), a case involving the defense of intoxication. Our holding in Rose was stated as follows: “In any criminal prosecution, the Commonwealth has an unshifting burden to prove beyond a reasonable doubt all elements of the crime. One of such elements in first degree murder is, of course, a specific intent to kill. . . . [I]t is error for the trial judge to instruct the jury that there is a burden upon the defendant to establish his intoxication by a preponderance of the evidence. Such evidence is offered by the defense solely to cast doubt upon the existence of the specific intent to kill and, as with all elements of the crime, the defendant has no burden of persuasion.” Id. at 389, 321 A.2d at 884. Appellant contends that in Rose we implied that the preponderance requirement was to be abandoned with respect to all affirmative defenses, of which self-defense is one, and that we in effect overruled our decision in Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), which had held that the preponderance test was proper for self-defense. While Rose did cast grave doubt upon the continued validity of our decision in Winebren ner, 457 Pa. at 387-88, 321 A.2d at 883-84, that argument cannot be considered at this juncture because it is untimely raised. During his closing argument at trial appellant’s counsel admitted that appellant bore the burden of proving self-defense by a preponderance of the evidence. No objection to this standard was made either at trial or on post-trial motions; it was raised for the first time on appeal. This was simply too late. Commonwealth v. McComb, 462 Pa. 341, 504 A.2d 496 (1975); Commonwealth v. Carbonetto, 455 Pa. 93, 100, 314 A.2d 304 (1974); Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741 (1972). Cf. Commonwealth v. Sims, 462 Pa. 26, 333 A.2d 477 (1975). Turning to appellant’s other assertion, that the trial court erred as a matter of law in not finding that the killing of Fields was in self-defense, it is of course necessary that we review the entire record. In making that review we must apply the standards required by the Crimes Code . Wholly apart from our decision in Rose, supra, we are of opinion that the General Assembly in enacting the Crimes Code has mandated the same result as we there reached. Nowhere in § 505 of the Code is there any indication that a defendant who asserts self-defense is required to prove that defense by a preponderance of the evidence. This omission is significant when it is considered that in a number of other sections of the Code dealing with defenses to various crimes, the legislature has specifically required that the defenses or certain elements thereof be proved by the defendant by a pre ponderance of the evidence. Since no similar stipulation appears in § 505, it must be assumed that the legislature intended not to impose on defendants the burden of proving that they acted in self-defense. Thus when there is evidence at trial from whatever source that a killing may have been done in self-defense, the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 1891, 44 L.Ed.2d 508, n. 30 [decided June 10, 1975], Viewed in this light, we are satisfied that in the case at bar the trial court was warranted in refusing to arrest the judgment for insufficiency of the evidence to support the verdict. The testimony at trial showed that Cropper and Fields were old friends who were wont to engage in a rough kind of horseplay involving verbal and physical abuse of each other, and that Fields was unarmed at the time of the scuffle in which they engaged on this occasion. Admittedly, there was the decedent’s conditional threat, “If you even speak to me tomorrow I am going to kill you,” but that was hardly sufficient to justify a present belief on the part of appellant in the necessity to kill in order to protect himself. Accordingly, we are of the opinion that the evidence would support beyond ■ a reasonable doubt the determination of the trial court that “the circumstances were neither adequate to raise nor sufficient to justify a belief in the necessity to take life [e]ven if appellant’s testimony as to his fear were believed, it was a fear not reasonably justified by the immediate circumstances,” (opinion of Judge Stout at 11). It follows that the Commonwealth has carried its burden of proving that appellant was not acting in self-defense and that the verdict of voluntary manslaughter was proper. Commonwealth v. Light, supra; Commonwealth v. Pride, 450 Pa. 557, 559, 301 A.2d 582, 583 (1973); 18 Pa.C.S. §§ 501, 505. Judgment of sentence affirmed. JONES, C. J., EAGEN and O’BRIEN, JJ., concur in the result. . Acting as factfinder, the trial judge chose not to believe appellant’s testimony at trial that he was “actually afraid” and that he had used no more force than necessary to protect himself. . Appellant also contends that two remarks made by the trial judge during the summation by defense counsel demonstrate that the judge had already determined that the defendant was guilty, thus depriving him of the presumption of innocence throughout the trial. The remarks were in essence questions by the court seeking to elicit information relative to the defense of self-defense. Placed in their proper context, they were in no way improper, and fell far short of indicating that the judge was “so prejudiced or biased that [her] mind [was] not open to conviction by the last evidence presented.” Commonwealth v. Horn, 186 Pa.Super. 429, 435, 140 A.2d 847, 850 (1958); Commonwealth v. Owens, 444 Pa. 521, 281 A.2d 861 (1971). . See e. g., Commonwealth v. Roundtree, 440 Pa. 199, 204, 269 A.2d 709, 712 (1970), wherein we said that in order to establish self-defense in a homicide case three elements must be shown: “(1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing . . (2) The slayer must have reasonably believed that he was in imminent danger of death, great bodily harm, or some felony, and that there was a necessity to kill in order to save himself therefrom . . . . (3) The slayer must not have violated any duty to retreat or avoid the danger . .” (citations omitted). Accord, Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (filed June 28, 1975); Commonwealth v. Light, 458 Pa. 328, 333, 326 A.2d 288, 291 (1974); Commonwealth v. Carbonetto, 455 Pa. 93, 97, 314 A.2d 304 (1974); Commonwealth v. Zapata, 447 Pa. 322, 326, 290 A.2d 114, 116-17 (1972); Commonwealth v. Edwards, 448 Pa. 79, 83, 292 A.2d 361, 363 (1972); Commonwealth v. Johnston, 438 Pa. 485, 489, 263 A.2d 376, 379 (1970). . Section 501 of the Code defines the word “believes” to mean “reasonably believes” whenever it appears in chapter 5 of the Crimes Code, which deals with the general principles of justification. This is in accord with our prior law as to self-defense. See e. g., Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974). . Generally, an individual has no duty to retreat from his dwelling or place of work. 18 Pa.C.S. § 505(b)(2)(ii)(A). . Although our decision in Rose was arrived at as a matter of state evidentiary law, 457 Pa. at 386, 321 A.2d at 883, it would appear that the result may also have been required by the Fourteenth Amendment of the Constitution of the United States. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 [1975]. See also Commonwealth v. Haywood, 463 Pa. -, 346 A.2d 298 [filed Oct. 3, 1975]. . This has been done because, while we will not consider on its merits (the point not having been preserved for appeal) the failure of the trial court to apply the proper standard as ground for a new trial, we ourselves must apply that standard in passing on the sufficiency of the evidence; this Court cannot be bound by the lower court’s error of law in this regard. Compare Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970). . See e. g., §§ 307(d) (due diligence); 313(b) (entrapment); 908 (lack of intent or likelihood that offensive weapon would be used unlawfully); 3102 (mistake as to age); 3104 (sexual promiscuity of complainant); 3903(b) (amount of theft); 4106(b) (intent and ability to meet all obligations to issuer arising out of unauthorized use of credit card); 4107(b) (conduct not knowingly or recklessly deceptive). . This reasoning is valid despite the fact that in adopting the Crimes Code, which was drawn in large part from the American Law Institute’s Model Penal Code, the legislature did not expressly include § 1.12 of the Model Code (Proposed Official Draft, 1962). See Toll, A Practitioner’s Guide to Defenses Under the New Pennsylvania Crimes Code, 12 Duq.L.Rev. 849 (1974). Section 1.12 of the Model Penal Code provides in pertinent part: “(1) No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed. (2) Subsection (1) of this Section does not: (a) require the disproof of an affirmative defense unless and until there is evidence supporting such defense; or (b) apply to any defense which the Code or another statute plainly requires the defendant to prove by a preponderance of evidence. (3) A ground of defense is affirmative, within the meaning of Subsection (2)(a) of this Section, when: (a) it arises under a section of the Code which so provides; or (b) it relates to an offense defined by a statute other than the Code and such statute so provides; or (c) it involves a matter of excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence.” While the adoption of this section of the Model Code would have been made it clear that defendants need not prove affirmative de-' fenses such as self-defense by a preponderance of the evidence unless “plainly” required by statute, the legislature’s decision to include the preponderance test only in selective sections of the Code achieves the same purpose. Furthermore, in light of the United States Supreme Court’s decision in Mullaney v. Wilbur, supra, which would appear to render unconstitutional any attempt to place on a criminal defendant the burden of disproving any element of a crime, it is incumbent upon us, if possible, to construe the provisions of the Code in such a way as to pass constitutional muster. Statutory Construction Act, 1 Pa.C.S. 1922(3) (Supp.1973). See also Commonwealth v. MacDonald, 464 Pa. -, 347 A.2d 290 (JJ. 195, 196, filed 1975); Bentman v. Seventh Ward Democratic Executive Committee, 421 Pa. 188, 218 A.2d 261 (1966). Our construction today achieves that purpose.

OPINION OF THE COURT LARSEN, Justice. The Commonwealth of Pennsylvania, Department of Environmental Resources (DER) appeals the decision of the Commonwealth Court which reversed in part and affirmed in part an Order of the Environmental Hearing Board (Board) dismissing the appellee, Mathies Coal Company’s (Mathies) challenge of certain effluent limitations imposed by the DER in Mathies’ National Pollutant Discharge Elimination System (NPDES) permit. In dismissing Mathies’ challenge, the Board held that the DER was not required to consider the economic consequences upon Mathies or the aquatic impact of the mine discharge in setting the effluent limits established in the permit. Upon review of the Board’s adjudication, the Commonwealth Court reversed that portion of the Board’s order. To the contrary, the Commonwealth Court held that the DER was indeed required to consider the economic impact on Mathies and the aquatic effects of its actions in setting the effluent limitations in Mathies’ NPDES permit. We find that the Commonwealth Court erred in finding such a requirement and now reverse. On August 4, 1982, responding to Mathies’ request, DER issued Amendment No. 3 to Mathies’ NPDES permit PA 0023337. The amendment authorized Mathies to increase its discharge into Peters Creek, Washington County, from the Thomas Portal of its coal mine, to 4,000 gallons per minute (gpm) from a previous maximum of 420 gpm. Additionally, the amendment imposed water quality based effluent limitations on various discharge parameters including, inter alia, the concentrations of iron, manganese and aluminum. On September 9, 1982, Mathies appealed to the Board challenging, inter alia, the more restrictive effluent limita tions established by the DER for iron, manganese and aluminum. In its Adjudication and Order issued on June 10,1985, the Board, inter alia, made the following Findings of Fact: “10. DER computed the effluent limitations on iron, manganese and aluminum concentrations from a formula based on the amount of flow in the Thomas Portal discharge and the so-called Q(7-10) flow in Peters Creek; the formula seeks to ensure that the final effluent concentrations in Peters Creek, after dilution of the discharge in Peters Creek, do not exceed the effluent concentrations prescribed by 25 Pa.Code Chapter 93____” “12. Mathies challenged neither the intent nor the substance of DER’s formula____” The issue of the economic impact on Mathies in complying with the effluent limits was the primary thrust ,of Mathies’ argument in the proceedings below. The Board, in considering Mathies’ argument concluded: “DER is required to apply the standards set forth in 25 Pa.Code § 93.7; therefore, it was not required to take into account the economic consequences upon [Mathies] of its action in setting the effluent limitations contained in the permit. The effluent limitations are calculated from a formula which takes into consideration the standards set forth in § 93.7 as well as the Q7-10 of the receiving stream. The Q7-10 is defined at 25 Pa.Code § 93.5(b) as the lowest-seven-consecutive-day average flow that occurs once in ten years. The monitoring point for determining compliance with the effluent limitations is the point of discharge to the receiving stream. Given this determination, the parties stipulated that there was no point in contesting the Q7-10 value at the point of discharge. The parties agreed that even if the Q7-10 were figured for a point downstream from the discharge, the calculation of the effluent limitations would not be significantly altered. Therefore, since the issue of the Q7-10 value to be used in calculating the effluent limitations has been removed from contention, and since DER was required to apply the standards set forth in 25 Pa.Code 93.7 in calculating those limitations, it follows that the limitations must be upheld”. Secondarily, Mathies raised the acquatic impact issue, which the Board disposed of as follows: “The possible effects, or lack of effects, of the discharge on plant and animal life in Peters Creek is outside the scope of [Mathies’] appeal, except as such facts bear on the point at which the flow is to be estimated in accordance with 25 Pa.Code § 93.5(b). On appeal, the Commonwealth Court, in describing its reviewing powers, correctly observed: “Our scope of review of [a Board] decision is limited to a determination of whether an error of law has been committed, constitutional rights have been violated or any findings of fact are unsupported by substantial evidence.” Mathies Coal Company v. DER, 100 Pa.Cmwlth.Ct. 311, 312, 514 A.2d 677, 678 (1986). The Commonwealth Court went on to hold: “[D]ER’s regulations provide that the water quality standards for a receiving stream are only ‘one of the major factors’ in developing discharge limits. 25 Pa.Code § 93.5(a). Therefore, DER generally has discretion to consider other factors when enforcing these standards by limiting discharge from a particular source. See Lucas v. Department of Environmental Resources, 53 Pa. Commonwealth Ct. 598, 420 A.2d 1 (1980) (25 Pa.Code § 93.5(a) allows discharge limitations to be established on an individual case-by-case basis).” (Footnote omitted.) Id. at 314, 514 A.2d at 678. Citing its opinion in Department of Environmental Resources v. Borough of Carlisle, 16 Pa.Cmwlth. 341, 330 A.2d 293 (1974), the Commonwealth Court further concluded: “[Because such discretion exists, DER must consider, where applicable, the economic and aquatic impacts of its actions pursuant to Section 5(a) of The Clean Streams Law.” (Footnote omitted.) Mathies Coal Company v. DER, 100 Pa.Cmwlth.Ct. at 314, 514 A.2d at 678, 679. Thus, the Commonwealth Court reversed the Board’s order insofar as the Board had held that the DER was not required to consider evidence of economic and aquatic impacts when issuing the NPDES permit. The Court then remanded the case for further proceedings to consider these issues. The appellant, DER, argues that neither the Pennsylvania Water Quality Regulations (25 Pa.Code, Chapter 93) nor The Clean Streams Law (35 P.S. § 691.1, et seq.) imposes upon DER the obligation to engage in an ad hoc economic inquiry each time it sets effluent limits in issuing a NPDES permit or an amendment to a permit. DER argues, particularly, that the Commonwealth Court misconstrued the phrase contained in 25 Pa.Code § 93.5(a) — “one of the major factors to be considered” — as requiring the DER to consider Mathies’ cost of compliance when setting water quality based effluent limitations in a permit. The provisions of 25 Pa.Code § 93.5(a) state: 93.5 Application of water quality criteria to discharge of pollutants. (a) Application of effluent limitations. The water quality criteria prescribed in this chapter for the various designated uses of the waters of this Commonwealth apply to receiving waters and are not to be necessarily deemed to constitute the effluent limit for a particular discharge, but rather one of the major factors to be considered in developing specific limitations on the discharge of pollutants. Where water quality criteria become the controlling factor in developing specific effluent limitations, the procedure set forth in § 95.3 (relating to waste load allocations) will be employed. (Emphasis supplied.) From the language, “one of the major factors to be considered", set forth in § 93.5(a), the Commonwealth Court determined that DER had the discretion to consider factors other than the statutory criteria when enforcing water quality standards in establishing effluent limitations on discharges. The Commonwealth Court reasoned that because of this discretion to consider other factors, the DER was required to consider the economic impact of the effluent limitations on Mathies. The Board, on the other hand, in considering the discretion possessed by the DER in setting effluent limits, held: “[I]t was not an abuse of discretion for DER to have established the aforesaid effluent limits without considering the economic impact on Mathies. Indeed, under the circumstances just described, wherein Mathies has offered no possibly meritorious legal defenses to application of the regulations, it probably would have been an abuse of discretion for DER not to apply them. The DER, in exercising its discretion in enforcing Pennsylvania’s water quality regulations, determined that it was not appropriate, under the circumstances of this case and in light of the applicable regulations and statute, to consider the economic impact on the discharger Mathies area in establishing effluent limitations in conjunction with the amendment to Mathies’ NPDES permit. The Board held that DER’s actions in this regard were lawful and proper. The Commonwealth Court, in reversing that portion of the Board’s Order, held that the DER was obliged to consider the economic consequences to Mathies in setting the effluent limitations associated with Mathies’ NPDES permit. In effect, the Commonwealth Court held that because the DER has discretion to consider various factors in establishing water quality, it has no discretion when it comes to consideration of the economic impact of the effluent limitations it sets. According to the Commonwealth Court, this factor must be considered. Under the Commonwealth Court’s decision, the DER’s discretion to consider factors other than the statutory criteria is translated into an obligation to consider the economic impact to the discharger in establishing effluent limitations. We cannot agree. Discretion involves the ability to exercise judgment and choose between or among different courses of action, not an obligation to pursue a particular course of action. The Water Quality Regulations at 25 Pa.Code, Chapter 93 make provision for a downgrading of a stream use where certain conditions are shown to exist. 25 Pa.Code § 93.4(b) provides: (b) Less restrictive uses than those currently designated for particular waters listed in § 93.9 (relating to designated water uses and water quality criteria) may be adopted where it is demonstrated that: (1) The existing designated use is not attainable because of natural background conditions; (2) The existing designated use is not attainable because of irretrievable man-induced conditions; or (3) Applications of effluent limitations for existing sources more stringent than those required under 33 U.S.C. § 1311, in order to attain the existing designated use, would result in substantial and widespread adverse economic and social impact. Mathies failed to pursue the demonstration of any of the conditions set forth in § 93.4(b) which would have permitted a downgrading of the stream use. Instead, Mathies challenged the effluent limits by arguing that the DER failed to meet its obligation and take into account the economic consequences to Mathies of compliance. The controlling regulations and statute impose no such obligation on the DER. Additionally, as we noted above, the Commonwealth Court, in reaching its decision, relied upon the provisions of Section 5(a) of The Clean Streams Law, and its previous opinion in Department of Environmental Resources v. Carlisle, supra. Section 5(a) of The Clean Streams Law provides: (a) The department, in adopting rules and regulations, in establishing policy and priorities, in issuing orders or permits, and in taking any other action pursuant to this act, shall, in the exercise of sound judgment and discretion, and for the purpose of implementing the declaration of policy set forth in section 4 of this act, consider, where applicable, the following: (1) Water quality management and pollution control in the watershed as a whole; (2) The present and possible future uses of particular waters; (3) The feasibility of combined or joint treatment facilities; (4) The state of scientific and technological knowledge; (5) The immediate and long-range economic impact upon the Commonwealth and its citizens 35 P.S. § 691.5(a). The Commonwealth Court’s reliance upon the Clean Streams Law and its opinion in Department of Environmental Resources v. Carlisle, supra to support its holding in the instant case is misplaced. The economic impact which must be considered under The Clean Streams Law and under Carlisle relates to the impact on the community and public at large, not on the individual discharger. In Carlisle, the cross-appellants, Borough of Carlisle and the Carlisle Borough Sewer System Authority, in challenging a sewer ban order imposed in that case, argued that the DER failed to consider the economic impact upon the citizens of Carlisle. Citing Section 5(a) of The Clean Streams Law, the Commonwealth Court, in Carlisle, held that: “consideration should be given by the DER to, inter alia, the immediate and long-range economic impact upon the Commonwealth and its citizens. (Emphasis supplied.) Id., 16 Pa.Cmwlth.Ct. at 350, 330 A.2d at 299. That court went on to find that such consideration was given at the hearing before the Board when testimony was presented on the economic impact issue by a Borough Council member, two local builders, one realtor and a sales manager for a local vacation resort. Id. Neither The Clean Streams Law nor Carlisle require consideration of the economic impact on an individual discharger. The issue presently before us in this case is specific and narrow: Is the DER required, as a matter of law, to consider the economic consequences to the discharger in establishing effluent limitations for discharges in issuing or amending a NPDES permit? In reviewing the Adjudication of the Board, we find no error of law, no violation of constitutional rights, and substantial evidence in support of the Board’s findings of fact. “ ‘By a host of authorities in our own and other jurisdictions it has been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution____ That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.’ Blumschein v. Pittsburgh Housing Authority, 379 Pa. 566, 572, 573, 109 A.2d 331, 334 (1954).” In re Petition of Acchione, 425 Pa. 23, 30, 227 A.2d 816, 820 (1967). The DER’s interpretation of its regulations and regulatory scheme is entitled to deference by this court and should not be disregarded unless shown to be clearly erroneous. See Jackson v. Pennsylvania Public Utility Commission, 105 Pa.Cmwlth. 37, 522 A.2d 1187 (1987). The DER insists that the Commonwealth Court has misread the water quality regulations embodied in 25 Pa. Code § 93.5(a). The DER argues that the “one of the major factors to be considered ” language contained in § 93.5(a), “is not an authorization to the [DER] to engage in a cost/benefit analysis when calculating water quality based effluent limitations. Instead, the phrase in question refers to the numerous scientific and technical decisions which the [DER] makes in deriving a water quality based limit.” (Brief of Appellant, pp. 27 & 28) The appellant DER further argues that: “[I]t has interpreted this less than crystalline phrase as authorizing a stream specific inquiry where the following questions are answered: (1) What is the stream classification; (2) What pollutants are discharged; (3) What is the fate and transport of the pollutants (do they decay or persist, do they chemically or synergistically react with other substances); (4) What other point and non-point sources discharge to this stream segment; (5) Is the discharge to a free flowing stream or to a lake or impoundment; (6) What is the concentration of the pollutant already in the stream; (7) What is the receiving stream volume and (8) What is the volume of the discharge. See 25 Pa.Code § 95.3” (Brief of Appellant DER pp. 28 & 29). The DER asserts: “this analysis does involve many factors that are scientifically and technically complex, however, it does not involve any economic balancing.” (Brief of Appellant DER, p. 29). This interpretation of the water quality regulations by DER is reasonable and is consistent with the purposes of the regulations and the relevant statutes. 25 Pa.Code, Chapter 93 establishes water quality standards for the waters of Pennsylvania. The standards are based upon water uses which are to be protected. 25 Pa.Code § 93.2. The purpose of The Clean Streams Law, 35 P.S. § 691.1, et seq., is to prevent the discharge of pollution into the waters of the Commonwealth. See Commonwealth v. Barnes & Tucker, 472 Pa. 115, 371 A.2d 461, appeal dismissed 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). The Commonwealth Court, in reversing in part the order of the Board, failed to give adequate recognition to the scope and purpose of the water quality standards and The Clean Streams Law, and substituted it judgment for that of the DER. Accordingly, the order of the Commonwealth Court is reversed insofar as it reverses the order of the Environmental Hearing Board. . Effluent limits is defined as: "Any restriction established by the Department on quantities, rates, and concentrations of pollutants which are discharged into the waters of this Commonwealth.” 25 Pa.Code § 93.1. . § 93.7. Specific water quality criteria. (a) Waters of this Commonwealth for which specific criteria have been established are listed in § 93.9 * (relating to designated water uses and water quality criteria.) (b) References to specific criteria in § 93.9 shall be keyed to the list of specific criteria set forth in subsection (c) and to the groups of criteria set forth in subsection (d). (c) The following Table 3 shall display the specific water quality criteria. Unless otherwise specified, the specific criteria concentration limits are for the total, rather than the dissolved, form of a substance. ****** (d) Unless otherwise specified in subsection (e), § 93.5(d) and (e) (relating to the application of water quality criteria to discharge of pollutants), and § 93.9, Statewide specific criteria set forth in the following Table 4 shall apply to all surface waters of this Commonwealth: ****** (e) The following Table 5 contains groups of specific water quality criteria based upon water uses to be protected. When the symbols listed below appear in the Water Uses Protected column in § 93.9 (relating to designated water uses and water quality criteria), they have the meaning listed in the table below. Exceptions to these standardized groupings will be indicated on a stream-by-stream or segment-by-segment basis by the words "Add" or "Delete” followed by the appropriate symbols described elsewhere in this chapter. ****** (f) The list of specific water quality criteria does not include all possible substances that could cause pollution. For substances not listed, the general criterion that these substances shall not be inimical or injurious to the designated water uses applies. The best scientific information available will be used to adjudge the suitability of a given waste discharge where these substances are involved. * § 93.9. Designated water uses and water quality criteria. Except as provided in § 93.5(d) and (e) (relating to the application of water quality criteria to discharge of pollutants), the following tables display designated water uses and water quality criteria. The county column in Drainage Lists A through Z indicates the county in which the mouth of the stream is located. (Drainage Lists A through Z follow) . The issue of the aquatic impact of the effluent limits was a secondary argument advanced in a sketchy fashion in the proceedings below. Even in this court, the arguments and briefs focus upon the economic impact issue and more or less skim over the question of the aquatic impact of the effluent limits. We believe the reason for this sketchy treatment of the aquatic impact factor is that the issue lacks merit. Basically, Mathies asserts that the DER should be required to consider evidence and determine what specific effect the particular discharge from Mathies' mine would have on the biota of Peters Creek in issuing the amendment to Mathies’ NPDES permit. That determination however, was made by the DER in establishing the effluent limits. The DER points out that Mathies is the sole discharger into the head waters of Peters Creek. The DER further points out that two of the pollutants involved here, namely, iron and manganese are considered "conservative." This means that they do not "decay with time or disappear from the stream by settling, absorption or other means.” (Brief of Appellant, p. 15, n. 27.) To determine the applicable effluent limitations in light of these facts, the DER developed and used a mass balance equation. "A mass balance [equation] is very simply an expression of the basic law of conservation of matter. It is an exact accounting of all the materials that enter, accumulate, or are depleted in a given time interval. The principle of material balance calculation is to establish a number of independent equations equal to the number of unknowns of composition and mass." (citation omitted) The mass balance equation relied upon in this case is a one dimensional model for a pollutant that does not decay, commonly referred to as a conservative or persistent pollutant, (citation omitted) The components of the mass balance equation are: background stream flow; background stream concentration of a parameter; design average flow of the discharge and the applicable pollutant criteria. The actual formula is: [Q 7-10 X background stream concentration] + [Design average flow x Unknown concentration] = [Chapter 93 criteria] (Total Flow). The appellant DER indicates that: "In this case the equation’s solution was obvious because the volume of the discharge is so large when compared to the design flow of the receiving stream (8.87 cfs to 0.056 cfs). Indeed when Mathies’ discharge combines with the receiving stream (8.87 cfs + 0.056 cfs = 8.926) its discharge of 8.87 cfs accounts for over 99% of the total stream flow. Under these circumstances, the water quality criteria became the controlling factor in the equation ... (footnote omitted), and as a result, the criteria for iron and manganese represents the highest concentration of these metals that could be present in the Mathies’ discharge. This is because any higher values would not protect all the aquatic and water supply uses of Peters Creek.” (Appellant's brief, p. 16.) Thus, the aquatic effects were indeed considered in the manner mandated by the water quality regulations, 25 Pa.Code § 93.5(b). No further individualized consideration, as argued for by Mathies, need be given. . Brief of Appellant, DER, p. 20. . Adjudication of the Environmental Hearing Board (EHB), p. 9.

PRICE, Judge: This is an appeal from the order of the court below granting appellee, Mitchell and Ness, summary judgment. Because the record discloses no genuine issue of material fact and because appellee was entitled to judgment as a matter of law, we affirm. On January 6, 1973, appellant went to appellee’s rental shop at the Camelback Ski area to rent skis, boots and poles. Appellant signed a rental agreement before accepting the ski equipment. Later, while descending the beginners’ slope, appellant fell. The bindings on appellant’s skis did not release, thereby causing him to sustain numerous injuries. Appellant commenced this action on January 3, 1975 against appellee and Camelback Ski Corporation alleging negligence, violation of § 402A of the Restatement (Second) of Torts and breach of warranty. Appellee filed an answer and new matter alleging that appellant signed a rental agreement which fully released appellee from liability. In his reply, appellant admitted signing the agreement, but generally denied that it released appellee from liability. After the parties took depositions, appellee moved for summary judgment, which the lower court granted on October 29, 1976. For the reasons that follow, we affirm. Rule 1035(b) of the Pennsylvania Rules of Civil Procedure provides: “[summary] judgment . . . shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” No material facts are in issue. Appellant admits that he signed the rental agreement which provides: “RENTAL AGREEMENT AND RECEIPT I accept for use as is the equipment listed on this form and accept full responsibility for the care of the equipment while it is in my possession, and agree to reimburse Mitchell and Ness Ski Shop for any loss or damage other than reasonable wear resulting from use. I understand that insurance coverage applies to equipment breakage only, not lost, misplaced or stolen equipment. I understand that so-called safety bindings furnished herewith are releasable bindings designed to reduce the risk or degree of injuries from falling and that these bindings will not release under ALL circumstances and are no guarantee of my safety. I furthermore release,Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.” There being no material facts in issue, our next inquiry is whether appellee was entitled to judgment as a matter of law. The specific question is whether the agreement is valid and enforceable such that appellee is not legally liable for injuries suffered by appellant. The test for determining the validity of exculpatory clauses, admittedly not favored in the law, is set out in Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620 (1966). The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction. In the instant case the validity of the agreement is apparent. However, to be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity. Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., supra. Appellant argues strongly that the title of the agreement, “RENTAL AGREEMENT AND RECEIPT,” does not indicate that the contract contains a release from liability. Appellant insists that the contract therefore lacks the necessary clarity to render it enforceable. We are compelled to look at the agreement as a whole to determine whether the parties’ intent is clearly set forth. Although the title does not signal the exculpatory nature of the agreement, the four paragraphs of the body clearly state in laymen’s terms the fact that Mitchell and Ness is released from liability for damages and injury. The first sentence of the agreement begins, “I accept for use as is the equipment listed on this form . . . (emphasis added).” In the third paragraph the endorser acknowledges the fact that the bindings, although designed to reduce the risk or degree of injuries, will not release at all times and are no guarantee of safety. In the final paragraph, appellant accepts “full responsibility for any and all . . . damage or injury” resulting from use of the equipment. No clearer expression of intent to exculpate appellee is conceivable. Appellant’s next argument is that because the word “negligence” does not appear in the rental agreement, the exculpatory language does not cover his claim against appellee. It might also be argued that the clause is general and does not specifically exculpate appellee from negligent conduct. Although we must construe the contract strictly, we must also use common sense in interpreting this agreement. The mere fact that the word “negligence” does not appear in the agreement'is not fatal to appellee’s position. In Bogutz v. Margolin, 392 Pa. 151, 139 A.2d 649 (1958), a tenant sued her landlord for injuries received in a fall in the basement of the apartment building. Although the exculpatory clause did not specifically mention the basement, it did release the landlord from injury or damage occurring “in or about the premises.” The supreme court construed the clause to cover the basement and affirmed judgment on the pleadings in the landlord’s favor. In Cannon v. Bresch, 307 Pa. 31, 160 A. 595 (1932), a tenant sued his landlord for negligence which caused water damage to his stock and trade fixtures. The exculpatory clause released the landlord “from any and all liability for damage that may result from the bursting, stoppage, and leakage of any water pipe . . ” The supreme court found it unnecessary to resort to any rules of construction. The clause specified “any and all liability,” which was sufficient to include damage from negligence. Judgment on the pleadings for the landlord was affirmed. Those cases contrast with Galligan v. Arovitch, 421 Pa. 301, 219 A.2d 463 (1966), in which an exculpatory clause specified locations in which the tenant might be injured but the landlord was not to be held liable. The clause did not specify the front of the building, where the tenant fell. Because there was no general language which could be construed to include the area in front of the building, as in Bogutz v. Margolin, supra, judgment on the pleadings in favor of the landlord was reversed. In the instant case, the main exculpatory clause is the fourth paragraph of the agreement, releasing appellee “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment . . . ” To say that negligent conduct is not included in “any liability” is patently incorrect. The dissent suggests a further tortured reading of the clause, and would hold that the alleged liability in this case did not accrue from “use of the equipment,” but from appellee’s failure to inspect and fit the bindings for appellant. It is clear that the accident occurred while appellant was using the equipment and that appellant’s injury was at least compounded by the equipment’s failure to function as it should have. One further argument might be that the agreement cannot be construed to cover appellee’s negligence because it occurred prior to the signing of the agreement. If appellee was negligent as alleged, in renting equipment to appellant without first testing and fitting the bindings for appellant, then that negligence occurred simultaneously with appellant’s acceptance of the rental agreement and receipt. For the reasons stated, we find the exculpatory clause valid and enforceable. Judgment affirmed. HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins. WATKINS, former President Judge, did not participate in the consideration or decision of this case.

Opinion by Mr. Justice Moschzisker, Stuart Groninger died in 1900, leaving to survive him a widow, Rosa A. Groninger, a son, Charles Elliott Groninger, and a daughter, Edna Groninger, now Edna Groninger Kochenour; he provided by his will: “all property, real, personal and mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in manner following, to wit: [after direction to pay debts] I give, devise and bequeath [the property above recited] to my beloved wife, Rosa A. Groninger, as long as she lives; at her death the estate shall be divided equally between my children, if any living, if none, to my nearest heirs, all -my property, real, personal and mixed whatsoever and wheresoever, at the time of my death, including B. of L. E. Insurance.” Charles Elliott Groninger departed this life in 1914, intestate, and without issue, leaving a widow Anna V. Groninger; May 30, 1916, Rosa A. Groninger, the life •tenant, died. Subsequently, the son’s widow — proceeding on the theory that her late husband, under the will of his father, possessed a vested remainder in certain real estate, situate in the City of Harrisburg — had an undivided one-half interest therein set aside to her at a valuation, which was duly confirmed by the Orphans’ Court of Dauphin County, in accord with the relevant acts of assembly. January 29, 1919, Edna Groninger Kochenour presented a petition to the court below praying the proceedings instituted by her brother’s widow be vacated, on the ground that Charles Elliott Groninger had but a con tingent interest, which, since he died before his mother, never vested; whereupon the parties executed a writing in the nature of a case-stated, setting forth the above recited facts and agreeing, if the court below should be of opinion that, by the terms of the will of Stuart Groninger, deceased, his son Charles was given a vested remainder on the death of testator, then the petition should be dismissed, but if the remainder was contingent upon Charles surviving his mother, the proceedings attacked should be vacated. The court decided the interest in question to be vested, and accordingly dismissed Edna Groninger Kochenour’s petition; she has appealed. It may be testator’s intentions are not clearly expressed, still our first duty is to examine the will, and. if possible ascertain its meaning without reference to canons of construction (Mulliken v. Earnshaw, 209 Pa. 266); this we shall proceed to do. It will be noticed testator, after giving a life interest to his wife, provides that, “at her death,” his estate shall “be divided equally between [his] children, if any living.” lie does not use the phrase “then living,” nor does he say his property shall go to such children as may “then be living”; he employs no such expression. The word “any” means “one indifferently out of a number” (Webster’s Collegiate Dictionary), and testator evidently used it in that sense. Stuart Groninger had but two children; and the will, according to a fair interpretation of its language, says his estate is to be “divided equally between” them, if either one is living at the actual distribution thereof, which he directs shall not take place till the expiration of a prior life estate. Since the property in question could not be “divided equally between” one child, should only one survive the life tenant (which has eventuated), what, as a matter of fact, the father must have had in mind and intended to provide for was an equal division of his estate between the two children and also postponement of actual distribution, in order to let in the life interest given their mother. The thought that Stuart Groninger intended his property to vest in such children as might survive him, and not the life tenant, is strongly supported by the further provision, in the same sentence of the will, that, if “none” of his children survive, then the estate is to go to testator’s “nearest heirs.” It is established with us that, when a remainder following a life estate is given to one’s heirs, the heirs living at the death of the testator, and not those at the death of the life tenant, take, unless the will itself contains convincing evidence of a contrary intent (Buzby’s App., 61 Pa. 111; Stewart’s Est., 147 Pa. 383; Fuller’s Est., 225 Pa. 626; Fitzpatrick’s Est., 233 Pa. 33; Tatham’s Est., 250 Pa. 269); but here it is not necessary to call upon this rule of construction, for testator, by the parenthetical clause — “at the time of my death” — found toward the end of the present devise, may well be understood to indicate an intention specifically to designate the first class of beneficiaries. This is significant, in connection with our instant consideration, because the substitutionary provision in favor of testator’s heirs occurs “in the same sentence, and in the same distribution of his property,” as the one for children, and since, by the former provision, he clearly intends heirs living at his death, so also must a similar meaning be ascribed to the latter, so far as children are concerned: Redding v. Rice, 171 Pa. 301, 305. As previously said, a fair interpretation of the language used in his father’s will fully supports the decision that Charles Elliott Groninger died possessed of a vested remainder; but if, for sake of argument, it be conceded testator’s meaning is vague, still the interest under discussion cannot be adjudged contingent. “What is required in such case is not that the words of the will admit of a possible, or even a reasonable, inference that the testator intended a contingent remainder, but that such intention should, appear plainly, manifestly and indisputably,” otherwise the estate in remainder is always held to be vested: Mr. Justice Stewart in McCauley’s Est., 257 Pa. 377, 380-381; also see Neel’s Est., 252 Pa. 394, 405. If, on the theory of vagueness in the instrument we have to interpret, the applicable principles of lav/ and relevant rules of construction are invoked, it is clear that testator — by the directions that, at the life tenant’s demise, the property should be divided equally between his children — meant to fix simply the time when the actual enjoyment of the remainders already vested in such children should pass to them; and, of course, in the event of the death of either one, these vested interests would go to those who might be entitled to their respective estates, as heirs or otherwise. The rules and principles applicable to this class of cases have been so often, and so lately, discussed by us that it is not necessary to reiterate them here — it is enough to refer to Hood v. Maires, 255 Pa. 128; Bair’s Est., Id. 169, also authorities already cited, and others to be mentioned; but, before taking up the next subject for consideration, it may be well to note that this court early decided “the presumption that a legacy is intended to be vested” applies with far greater force where a testator is making provision for his children than where the gift is to strangers or collateral relatives (Wengerd’s Est., 143 Pa. 615, 621; also see Minnig v. Batdorff, 5 Pa. 503), and the reason for this is apparent, for, in the absence of plain evidence on the face of the will itself of a purpose to that end, it cannot be contemplated that one would intend to cut off possible surviving grandchildren, from an inheritance given their parent, simply because the latter might happen to die during the continuance of an anterior life estate. We might stop at this point, but there is one other matter which it seems well to discuss. Appellant contends that the gift in remainder is “implied only from the direction to divide” contained in testator’s will, and hence this direction is “annexed to the devise itself,” and, as a consequence, the “vesting in interest” — not merely in “possession or enjoyment” — is postponed; citing Mr. Justice Brown, in Rosengarten v. Ashton, 228 Pa. 389. While the rule just referred to is well established, it does not control the present case. Of course, where a will sheds no light upon the subject of the testator’s intent — as to the vesting of remainders — other than that shown by a direction to pay or divide the principal at a designated future time, and the gifts in remainder are implied solely from the “direction to pay,” such gifts are “necessarily inseparable” from the direction, and “partake of its quality, insomuch that, if the one is future and contingent, so must the other be”: Moore v. Smith, 9 Watts 403, 407. However, in Man’s Est., 160 Pa. 609, 612, 613 (cited in Rosengarten v. Ashton), where the bequest was to “divide” the principal at the death of the life tenant, we held remainders thus created to be vested, saying: “where there is a bequest in the form of a direction to pay, or pay and divide, ‘from and after’ the happening of any event,” without more, the remainder is usually accounted contingent: “but if, upon, the whole will, it appears that the future gift is only postponed to let in some other interest, or, as the court has commonly expressed it, for the greater convenience of the estate ■......, the interest is vested notwithstanding, although the enjoyment is postponed.” Again, in a most recent case upon the subject, Jenning’s Est., 266 Pa. 60, where (as here) the remainders rest upon a direction to “divide” testator’s estate between his children upon the death of their mother, we held the interests of the children to be vested remainders, citing Marshall’s Est., 262 Pa. 145, 149. The last mentioned case so plainly states the limitations upon the rule referred to in Rosengarten v. Ashton, that all should now appreciate it is not invariably applicable whenever a direction for distribution happens to be associated with the creation of a remainder; but, since a number of recent appeals indicate misapprehension upon this point, we deem it wise to repeat the following relevant matter from the opinion of Chief Justice Brown in Marshall’s Est. (p. 149) : “Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred till the period in question. Thus where stock is bequeathed to A. for life, and after his decease to trustees, upon trust to sell and......divide the proceeds.......between C. and D.; as the payment or distribution is evidently deferred until the decease of A., for the purpose of giving precedence to his life interest, the ulterior legatees take a vested interest at the decease of the testator: 1 Jarm. on Wills, 764. Where the enjoyment of the gift over is postponed to accommodate the estate, or for the payment of debts, or to meet any other burden first imposed, and not chiefly on account of the character of the donee, it is regarded as a decisive circumstance in favor of immediate vesting: 2 Redf. on Wills, 236, section 37......The mode or form of the bequest seems to be regarded by Vice-Chancellor Wigram as immaterial......The question is one of substance and not of form, and in all cases it is whether the testator intended it [as] a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies; the answer to this question must be sought for out of the whole will, and not in the particular expression only in which the gift is made: Leeming v. Sherratt, 2 Hare 14; McClure’s App., 72 Pa. 414.” See also Milligan’s Est., 244 Pa. 161; Reeder’s Est., 254 Pa. 85; Rau’s Est., 254 Pa. 464; Strocker’s Est., 260 Pa. 385; and Packer’s Est. (No. 2), 246 Pa. 116, 126, 127. The assignments of error are overruled and the decree is affirmed at cost of appellant.

Per Curiam. In Johnston v. Chapman, 3 Penns* Rep. 18, a guarantee was held to be an engagement to pay in default of solvency in the debtor, provided due diligence was used to obtain payment from him; and that merely to demand payment, is not due diligence. Here payment was not even sought for in the lifetime of the drawer, who lived nearly eight years after the note fell due; and this is such gross negligence as to render a resort to the statute of limitations entirely unnecessary. It is impossible to say the money would not have been obtained had the debt been pressed; and to suffer the plaintiff to recover against the guarantee under these circumstances, would expose the latter to loss which was probably produced by the supineness of another.

PELLEGRINI, Judge. Lower Moreland Township (Township) appeals from an Order of the Montgomery County Court of Common Pleas (trial court) reversing a Decision of the Lower Moreland Township Zoning Hearing Board (Zoning Hearing Board) denying Manor Healthcare Corporation’s (Manor) application for a special exception. This action was initiated when Manor applied to the Zoning Hearing Board for a special exception and a variance in order to construct a 48,100 square foot two-story “skilled nursing facility” within an “L” Residential District on a 8.5 acre undeveloped tract. Before the Zoning Hearing Board Manor contended that the skilled nursing facility qualified for the special exception because it was a “hospital or sanatorium” which is a permitted use when authorized by special exception in a “L” Residential District. Denying Manor’s request for a special exception, the Zoning Hearing Board held that Manor’s proposed skilled nursing facility was not a “hospital or sanatorium” but a “group home” which is not a permitted use within an “L” Residential District. (R.R. pp. 362-394). Manor appealed the decision to the trial court which reversed the Zoning Hearing Board finding that the proposed facility was in fact a “hospital or sanatorium” and that Manor had met all of the terms and conditions required for a special exception. (R.R. pp. 403-426). The Township now appeals the trial court’s Order. The Township contends that the trial court erred in finding that Manor’s proposed skilled nursing facility was within the category of a “hospital or sanatorium” and not a “group home.” The Township argues that the skilled nursing facility is not a “hospital or sanatorium” based on the limited type of medical care provided, but clearly falls within the definition of group home. The Township also contends that even if the facility could be classified as a “hospital or sanatorium”, a special exception cannot be granted due to the clear showing that it will have a detrimental effect on the community. We disagree with the Township’s contentions. Before the Zoning Hearing Board, Manor contended that the proposed facility is a skilled nursing facility as opposed to a regular nursing home. (R.R. pp. 32-33). Chapter 201.3 of the regulations promulgated by the Pennsylvania Department of Health for long term care facilities defines skilled care: Skilled care — Professionally supervised nursing care and related medical and other health services provided for a period exceeding 24 hours to an individual not in need of hospitalization, but those needs are such that they can only be met in a long term care facility on an inpatient basis, and who needs the care because of age, illness, disease, injury, convalescence or physical or mental infirmity. The term includes the provision of daily inpatient services that are needed on a daily basis by the patient, ordered by a physician, which require the skills of and are furnished directly by or under the supervision of technical or professional personnel, such as, but not limited to, registered nurses, licensed practical nurses, physical therapists, occupational therapists, speech pathologists or audiologists. The care would include nursing, skilled rehabilitation or a personal care service that because of a special medical complication of the patient require that the personal care services be performed by or under the direct supervision of skilled nursing or rehabilitative personnel. 28 Pa.Code § 201.3 (emphasis added). The trial court found that the proposed facility was in fact a skilled nursing facility. (R.R. p. 419). Because the Township does not raise the validity of this finding on appeal, and since the Zoning Ordinance does not provide any district which explicitly permits a skilled nursing facility, the issue before us is whether a skilled nursing facility is a “hospital or sanatorium” which is a permitted use, or a “group home”, which is not a permitted use in an “L” Residential District. “Whether a proposed use, as factually described in the application and the testimony, falls within a given categorization contained in the zoning regulations is a question of law, on which the zoning board’s determination is subject to review.” Merry v. Zoning Board of Adjustment, 406 Pa. 393, 395, 178 A.2d 595, 597 (1962); See also In re Appeal of Ethken Corporation, 89 Pa.Commonwealth Ct. 612, 493 A.2d 787 (1985). Section 6(10) of the Zoning Ordinance defines a “group home” as: [A] residential facility used as a living quarters by a number of unrelated persons, which facility is required to be licensed under applicable state statutes and regulations. A group home must be authorized as a special exception in accordance with other provisions of the Zoning Ordinance. (R.R. p. 429). However, the Zoning Ordinance does not ' provide a definition of “hospital or sanatorium”. Where a zoning ordinance does not provide a definition of a term, it must be given its usual and ordinary meaning. Bakerstown Container Corporation v. Richland Township, 508 Pa. 628, 500 A.2d 420 (1985); Allegheny Valley School v. Zoning Hearing Board of Slippery Rock Borough, 102 Pa.Commonwealth Ct. 290, 517 A.2d 1385 (1986). Where a court needs to define a term, it may consult definitions found in statutes, regulations or the dictionary for guidance, although such definitions are not controlling. Interim House, Inc. v. Philadelphia Zoning Board of Adjustment, 36 Pa.Commonwealth Ct. 54, 387 A.2d 511 (1978). In order to determine the usual and ordinary meaning of these terms, we have consulted several sources. A comprehensive definition of “hospital” is contained in Section 1001 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 1001, which defines a “hospital” as: [A]ny premises, other than a mental health establishment as defined herein, operated for profit, having an organized medical staff and providing equipment and services primarily for inpatient care for two or more individuals who require definitive diagnosis and/or treatment for illness, injury or other disability or during or after pregnancy, and which also regularly makes available at least clinical laboratory services, diagnostic x-ray services and definitive clinical treatment services. The term shall in- elude such premises providing either diagnosis or treatment, or both, for specific illnesses or conditions. 62 P.S. § 1001. Black’s Law Dictionary also provide a definition of a “hospital” as: An institution for the treatment and care of sick, wounded, infirmed or aged persons; generally incorporated, and then of the class of corporations called “eleemosynary”, or “charitable”. Also the building used for such purposes. Hospitals may be either public or private and be limited in their functions or services; i.e. children’s hospital. Black’s Law Dictionary 664 (5th ed. 1979). As for the definition of “sanatorium”, Black’s Law Dictionary defines it as: A health retreat, or institution for the treatment of disease or care of invalids. Black’s Law Dictionary 1507 (4th ed. 1951) (emphasis added). Webster’s Ninth New Collegiate Dictionary also defines “sanatorium” as: an establishment that provides therapy combined with a regimen (as of diet or exercise) for treatment or rehabilitation; an institution for rest and recuperation (as of convalescents)', an establishment for the treatment of the chronically ill. Webster’s Ninth New Collegiate Dictionary 1040 (9th ed. 1989) (emphasis added). In regard to the definition of “nursing home”, Section 1001 of the Public Welfare Code defines it as: Any premises operated for profit in which nursing care and related medical or other health services are provided for a period exceeding 24 hours, for two or more individuals, who are not relatives of the operator, who are not acutely ill and not in need of hospitalization, but who, because of age, illness, disease, injury, convalescence or , physical or mental infirmity need such care. 62 P.S. § 1001 (emphasis added). Webster’s also defines “nursing home” as: a privately operated establishment where maintenance and personal or nursing care are provided for persons (as the aged or chronically ill) who are unable to care for themselves properly. Webster’s Ninth New Collegiate Dictionary 812 (9th ed. 1989) (emphasis added). Permissive terms in zoning ordinance must be construed expansively, so as to afford the landowner the broadest possible use and enjoyment of his land. Bakerstown Container Corporation; Allegheny Valley School. Conversely, “[Restrictions on a property owner’s right to free use of his property must be strictly construed and all doubts resolved in his favor.” Gilden Appeal, 406 Pa. 484, 492, 178 A.2d 562, 566 (1962); Interim House, Inc. v. Philadelphia Zoning Board of Adjustment, 36 Pa.Commonwealth Ct. at 64, 387 A.2d at 515. We agree with the trial court that the Zoning Hearing Board committed an error of law by finding the proposed facility a group home. A review of the above definitions convinces us that a skilled nursing facility falls within the definition of a “sanatorium”. Both provide treatment and rehabilitation for the aged, chronically ill, convalescents and those with disease. However, unlike a hospital, they do not provide diagnosis and treatment of acute injury or illness. Moreover, a skilled nursing facility does not fall within the category of a group home. The definition of “group home” merely states that it is a residence shared by a number of unrelated persons and is licensed by the state. It says nothing about providing any type of skilled medical care. Furthermore, the concept of a group home has generally béen limited to such things as delinquent children, abused women and mentally/physically handicapped persons. See Walker v. Zoning Board of Adjustment, 380 Pa. 228, 110 A.2d 414 (1955) (school for children with cerebral palsy is i not a sanatorium or hospital); United Cerebral Palsy Association v. Zoning Board, 382 Pa. 67, 114 A.2d 331 (1955) (residence for group of men with cerebral palsy is not a sanatorium). Since \ye conclude that a skilled nursing facility is a sanatorium within the provisions of the Zoning Ordinance, we now rhust determine if the Zoning Hearing Board committed ari error of law or abused its discretion when it found thait Manor failed to meet its burden of proving that the facility would not have a detrimental effect on the community. A special exception is not an exception to the Zoning Ordinance, but rather a use which is expressly permitted, absent a showing of a detrimental effect on the community. Johnson v. North Strabane Township, 119 Pa.Commonwealth Ct. 260, 546 A.2d 1334 (1988); A.J. Groseck & Associates v. Zoning Hearing Board of Montrose Borough, 69 Pa.Commonwealth Ct. 38, 450 A.2d 263 (1982). The applicant for the special exception has both the duty of presenting evidence and the burden of persuading the Zoning Hearing Board that the proposed use satisfies the objective requirements of the ordinance for grant of special exception. Appeal of R.C. Maxwell Company, 120 Pa.Commonwealth Ct. 251, 548 A.2d 1300 (1988); Keystone Chemical Company Inc. v. Zoning Hearing Board of Butler Township, 90 Pa.Commonwealth Ct. 213, 494 A.2d 1158 (1985). Once the applicant has met his burden of proof and persuasion, a presumption arises that it is consistent with the health, safety and general welfare of the community. Appeal of R.C. Maxwell Company; Kern v. Zoning Hearing Board of Township of Tredyffrin, 68 Pa.Commonwealth Ct. 396, 449 A.2d 781 (1982). The burden then normally shifts to the objectors of the application to present evidence and persuade the Zoning Hearing Board that the proposed use will have a generally detrimental effect on health, safety and welfare or will conflict with the expressions of general policy contained in the ordinance. Ralph & Joanne’s v. Neshannock Township Zoning Hearing Board, 121 Pa.Commonwealth Ct. 83, 550 A.2d 586 (1988); Bray v. Zoning Board of Adjustment, 48 Pa.Commonwealth Ct. 523, 410 A.2d 909 (1980). However, the Zoning Ordinance may, as here, place the “burden of proof” on the applicant as to the matter of detriment to health, safety and general welfare. Kern v. Zoning Hearing Board of Township of Tredyffrin; Bray v. Zoning Board of Adjustment. Such a provision in the Zoning Ordinance however, merely places the persuasion burden on the applicant. The objectors still retain the initial presentation burden with respect to the general matter of the detriment to health, safety and general welfare. Kern; Bray. The trial court found that the Township did not satisfy its initial production burden of showing a general detrimental effect on the community and thus the burden of persuasion did not shift to Manor. (R.R. pp. 423-424). However, the Township contends that substantial evidence exists to support the Zoning Board’s finding that they met their production burden and that Manor failed to persuade the Zoning Board that a general detrimental effect does not exist. The Township argues that it presented substantial evidence of a detrimental effect including the fact that most of the residents in the nursing facility would be from Philadelphia County, that serious traffic problems would exist as well as problems with sufficient parking. The Township also argued that the proposed facility would have a detrimental effect because it must utilize Township services, such as police, fire, water and sewage. As previously stated, our scope of review is limited to determining whether the Zoning Hearing Board committed an abuse of discretion or an error of law. Appeal of M.A. Kravitz Co., Inc. We may conclude that the Zoning Hearing Board abused its discretion only if its findings are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association. If the record indicates that the findings are supported by substantial evidence, we may not disturb the Board’s findings. Boundary Drive Associates v. Shrewsbury Township, 507 Pa. 481, 491 A.2d 86 (1985). The objectors, when presenting evidence, must “raise specific issues concerning the proposal’s general detrimental effect on the community before the applicant is required to persuade the fact finder that the intended use would not violate the health, safety and welfare of the community.” Appeal of R.C. Maxwell Company, 120 Pa.Commonwealth Ct. at 256-257, 548 A.2d at 1303. The objectors cannot meet their burden by merely speculating as to possible harm, but instead must show “a high degree of probability that it will [substantially] affect the health and safety of the community.” In re O’Hara’s Appeal, 389 Pa. 35, 53-54, 131 A.2d 587, 596 (1957); See also Tuckfelt v. Zoning Board of Adjustment, 80 Pa.Commonwealth Ct. 496, 500, 471 A.2d 1311, 1314 (1984). The trial court found that at most, the objectors’ testimony amounted to allegations of mere possibilities and fell far short of the “high degree of probability” standard necessary to sustain the objectors’ burden of production. (R.R. p. 424). After a review of the relevant testimony we agree with the trial court and find that substantial evidence does not exist to support the Zoning Hearing Board’s findings. Most of the evidence presented by the Township consisted of the testimony of nine neighbors who testified as to the possibility that traffic problems could result from the increased traffic generated by the facility. (R.R. pp. 380-382). The objectors testified that major traffic problems already exist. (R.R. pp. 380-382). The Township did not present any testimony from its Township planner or any other individual qualified on this issue. We find that such speculative testimony from concerned neighbors is insufficient to establish a “high degree of probability” of specific detrimental consequences to the public welfare. An increase in traffic alone is insufficient to justify the refusal of an otherwise valid land use. In re O’Hara’s Appeal. The objectors must show a high probability that the proposed use will generate traffic patterns not normally generated by this type of use and that this abnormal traffic will pose a substantial threat to the health and safety of the community. In re Appeal of Martin, 108 Pa.Commonwealth Ct. 107, 529 A.2d 582 (1987); Kern. Moreover, “the fact that a proposed use would contribute to projected traffic congestion primarily generated by other resources is not a sufficient basis for denying a special exception.” In re Appeal of Martin, 108 Pa.Commonwealth Ct. at 112, 529 A.2d at 584; Kern, 68 Pa.Commonwealth Ct. at 402, 449 A.2d at 784. Thus, the Township failed in its initial presentation burden and as such, Manor has satisfied all the requirements for the grant of a special exception. Moreover, even if the Township had satisfied its presentation burden by showing a high probability of harm, a review of the testimony presented by Manor on this issue demonstrates that they sufficiently rebutted the testimony presented by the Township. (R.R. pp. 30-252). Therefore, the Zoning Hearing Board committed an abuse of discretion because their findings are based upon insufficient evidence. Accordingly, we will affirm the Order of the trial court. ORDER AND NOW, this 15th day of April, 1991, the Order of the Montgomery County Court of Common Pleas dated September 10, 1990, is affirmed. . The application was amended on December 14, 1988, withdrawing the request for variance and leaving only the request for special exception. (Reproduced Record (R.R.) p. 11). . Section 52 of the Township’s Zoning Ordinance provides that any use permitted in an ‘‘R’’ Residential District is allowed in a "L” Residential District. (R.R. p. 442). Section 42 of the Zoning Ordinance provides that permitted uses in an “R" Residential District include "hospitals or sanatoriums ... when authorized as a special exception." (R.R. p. 440). . Section 65 of the Zoning Ordinance provides that “group homes” are a permitted use in an “M” Residential District if certain criteria are met for a special exception. (R.R. p. 449). . Our scope of review in a zoning appeal where the court of common pleas took no additional evidence is limited to a determination of whether the Zoning Hearing Board committed an abuse of discretion or an error of law. Appeal of M.A. Kravitz Co., Inc., 501 Pa. 200, 460 A.2d 1075 (1983). . There are numerous common pleas court decisions which have addressed this issue and have held that a nursing or convalescent home is a sanatorium and/or a hospital. Simon v. Doylestown Borough Zoning Board of Adjustment, 17 Bucks Co. L.Rep. 103 (1967) (An ordinance which permits a "hospital or sanitarium” authorizes a nursing home use.); Hunter Realty Co. v. Board of Adjustment of Tredyffrin Township, 15 Ches. Co. Rep. 299 (1967) (A home for the care of aged persons who require custodial care is a “hospital, sanatorium or similar health facility"); Linfante v. Norristown Borough, 87 Montg. Co. L.R. 199 (1966) (A "nursing hospital” for the care of elderly people is permitted as either a “hospital,” or a "home,” or a "sanatorium”); Brodsky v. McShain, 71 Pa. D. & C. 595 (Phila.1948) (A nursing home for convalescents is a "hospital”). . Section 193 of the Township’s Zoning Ordinance provides that: The applicant for a special exception shall have the burden of proving to the satisfaction of the Zoning Hearing Board that his application falls within the provisions of this ordinance and that the granting of his application for a special exception will not adversely affect the health, safety or welfare of the community of the Township. (Emphasis added). (R.R. p. 452).

Opinion, Mr. Justice Williams : The court below was right in the admission of the evidence which is the subject of the first assignment of error. The lot of land over which the line of the road belonging to the plaintiff in error had been laid, belonged prior to 1882 to James Cleary. He died in that year, and his title descended to his heirs-at-law of whom M. J. Cleary is one, and letters of admin istration upon his estate were regularly issued to M. J. Cleary. A judgment had been recovered against James Cleary in his lifetime by A. E. Beck in the Common Pleas of Schuylkill county. After the death of James Cleary it was regularly revived against the administrator, and on the 11th of July, 1885, the lot in controversy was brought to sale by the sheriff, and sold to M. J. Cleary. On the 81st of July, 1885, the railroad company entered and located their line of railroad. This proceeding for the assessment of damages was begun by M. J. Cleary in May, 1887. The acknowledgment and delivery of the sheriff’s deed did not take place until April, 1888. It is well settled however that a purchaser at sheriff’s sale acquires an inchoate title in the land purchased by virtue of his bid, and its acceptance by the sheriff. The subsequent acknowledgment and delivery of the deed provides the purchaser with the evidence of his title which relates to, and takes effect as of the date of the sale recited in it. The title of M. J. Cleary to this land vested at the time of his purchase from the sheriff on the lltli of July, 1885, notwithstanding the fact that he was not provided with the legal evidence of his title until 1888. As his purchase was prior to the entry by the railroad company, this proceeding to assess damages against the company was properly begun in his name. After the damages have been fixed, and the money paid into court, it may be the question of the character of the plaintiff’s holding will be raised, and the court called upon to decide whether he holds the title as owner, or as trustee for the heirs-at-law of James Cleary, but that question is unimportant now. The title being in him, the damages are properly assessed at his instance. The first, second and third assignments of error are therefore dismissed. The fourth and fifth assignments raise a more serious question. The true measure of the damages sustained by any given lot of land is found in the difference between its selling value before and after the entry complained of: Read. etc. R. Co. v. Balthasar, 119 Pa. 483. It is proper to consider for what purpose it may be used to advantage, in order to determine for what price it will sell. It may be salable as a site for the erection of a hotel, a factory, a dwelling, or a wharf, but it is not proper to lay before the jury proof of what the hotel or other structure would cost, together with proof of the value of the lot with such structure upon it, and treat the difference between these sums as the value of the lot. Such a method would be speculative and fanciful. Equally improper is evidence showing how many building lots the tract under consideration could.be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is worth, having in view the purposes for which it is best adapted, but it is the tract, and not the lots into which it might be divided, that is to be valued. The learned judge intended to guard this point in his charge to the jury, yet he seems to have left a question to the jury with which they had nothing to do. He said: “It would scarcely be a fair estimate of the value of the property to take this property and divide it all up into town lots and say that each town lot is worth so much money and that therefore the whole property is worth that amount of money; because that presupposes that the moment that property is cut into town lots it could all be sold off at that figure. That is a question for you whether that would be the case, particularly with a piece of ground on the outskirts of a town where perhaps the evidence would not show that the tide of improvement was going. It is a question of fact for the jury.” We do not agree with the learned judge that there was any such question for the jury in tliis case. The jury are to value the tract of land, and that only. They are not to determine how it could best be divided into building lots, nor conjecture how fast they could be sold, nor at what price per lot. A speculator or investor in deciding what price he could afford to pay, would consider the chances and probabilities of the situation as then actually existing. A jury should do the same thing. They are not to inquire what a speculator might be able to realize out of a re-sale in the future, but what a present purchaser would be willing to pay for it in the condition it is now in. This is a rule that is well settled and the court should have drawn the attention of the jury to it so as to have left no room for uncertainty on their part. They should have been told that they had nothing to do with the subdivision of this tract, the price of the lots or the probability of their sale; but that they were to ascertain the fair selling value of the land before and after the entry by the railroad company, in order to determine the actual damage done to its owner. The court was also in error in admitting the evidence offered to show why James Cleary had declined to sell or lease the land or the fact that he had done so. James Cleary might have had a reluctance to part with it for many reasons; he might have had a wise, or an unwise, confidence in its value as an investment, or a desire to see it occupied for some particular purpose, but his views upon this subject were not relevant to the inquiry before the jury. The questions before them were first, what was this land worth before it was touched by the railroad? Next, what was it worth as affected by the location of the road? When these questions were settled the damages were ascertained. Judgment reversed, and venire facias de novo awarded.

Opinion, Me. Justice Green: The rather numerous assignments of error in this case may be considered under a few heads. First. Those which relate to the admission and effect of parol testimony to change the written contract. These embrace the assignments numbered 4, 6, 8, 9, 10,11, 12, 13, and 20. The learned court below, both in admitting the parol testimony and in submitting it to the jury, stated the law with great care and caution, and with entire correctness. It was stated repeatedly in the charge that, in the first instance, the written contract of the parties must be regarded as the whole of their contract, and that it cannot be altered or changed by parol testimony of what occurred at the execution of the writing, except by proof, which the learned judge thus defines: “We say to you, first, that the written agreement, the law says, is the contract between the parties, and that when any person seeks to change a contract in writing, he must do it by clear, precise, and indubitable proof. And, by that kind or measure of proof, is meant, that the source from which the testimony comes must be credible; the statements of the witnesses must be clear and distinct as to what was said and done, and, altogether, it must be of a character to convince the minds of the jury that the part claimed was omitted, either by fraud, accident, or mistake of the parties, or, if not so kept out of the contract, that the party who complains of the omission was induced to sign the contract by the statement or the contemporaneous agreement made at the time the contract was signed. We are not to look for testimony that is beyond all doubt, as that would be requiring a measure of proof that the law does not require.” There was more, of the same kind of direction, and it was accompanied by a very lucid and perfectly impartial presentment of the testimony on both sides, and concluded by a repetition of the caution that the jury must be convinced that the witnesses stated what actually did occur at the time of the execution of the contract; that they were not mistaken in their testimony, and that the essential part of the contract thus omitted was the inducing cause that led the plaintiff to sign the written contract. It is not necessary to review the numerous cases in which this subject has been discussed and the fore going principles announced. They are well illustrated in the cases of Walker v. France, 112 Pa. 203 and Thomas v. Loose, 114 Pa. 35. In the latter case we said: “ Parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change, or reform the instrument. It has been often said that such oral agreement must be shown by evidence that is clear, precise, and indubitable; that is, it shall be found that the witnesses are credible, that they distinctly remember the facts to which they testify, that they narrate the details exactly, and that their statements are true. Absolute certainty is out of the question.” The law having been defined by the learned court below with entire accuracy, the only remaining question is, whether there was evidence in the case of a character proper to be submitted to the jury for their action. The evidence consisted of the written contract and the testimony of one witness, D. L.Ferguson, on the one side, and the testimony of two witnesses, T. L. Rafferty and E. W. Hepburn on the other. The written contract contains no reference to the verbal stipulation which, it is alleged by the plaintiff, formed part of the real contract of the parties, and induced the plaintiff to sign it. Rafferty had made an agreement with Hepburn and Hoover for the sale of a quantity of white pine timber on a designated tract of ninety acres. The contract in question here was, in substance, a release by Rafferty to Hepburn and Hoover of their obligation under the original written agreement by him with them, and a transfer of the same to D. L. Ferguson. There was an added modification of the original agreement changing the price to be paid for the logs which were to be cut. There was no stipulation for security to Rafferty, the vendor, in the original contract, and there was none in the written agreement with D. L. Ferguson. But the plaintiff, Rafferty, alleges that he was not willing to make the transfer to Ferguson unless he had security for the payment of the purchase-money, and whether there was an agreement for such security, made verbally, but omitted from the writing, was the question in controversy. The oral testimony on that subject was delivered by Rafferty and Hepburn for the plaintiff, and by D. L. Ferguson for the defendant. Rafferty, being examined, testified, inter alia, as follows: “ Q. Now what did Hepburn and Hoover do with this timber after the sale of it by you to them ? A. They came to me and wanted to sell it to D. L. Ferguson—they wanted to know if I would release them and take D. L. Ferguson—I told them I did not care if I would be secured on the logs. So we went and wrote the article out. Q. Where was this conversation ? A. My recollection is that it was made at ’Ras Hepburn’s house. 'Q. Who was there at the time? A. Bill Hoover, ’Ras Hepburn, Ferguson, and I. Q. What did you do when you met there ? A. He wrote out the article. Q. Who wrote it? A. D. L. Ferguson wrote it himself; it was written on ■the bottom of the old article. Q. You have testified that when Hepburn spoke to you about making this change you stated that you would if you had security ? A. Yes, sir. Q. Who was present then at Hepburn’s house at that time ? A. ’Ras Hepburn, Bill Hoover, and Ferguson. Q. State what was said there about the transfer of this agreement? A. Why, I told them that I would let them have the logs if they would give me security; he said he would let me have the logs as security. Q. Did you then proceed to make a written contract? A. Yes, sir. Q. After he drew it did you sign it? A. Yes, sir. Q. Was there anything said then? A. I asked him where the written security was, and he said the logs was security—that Hepburn and Hoover was witnesses. I asked him to put it in the article, but Ferguson said witnesses was as good as if it w'as in the article. (Repetition of part of answer.) A. Yes, sir, of course I did not know it then; that is what he told me, that the witnesses was just as good as the article. By the Court: What was the reason that you signed this agreement? A. Why did I sign it ? Because they wanted the loosing of it, and I thought if I would give him (Ferguson) the agreement and have the logs for security it would be all right. Q. When you found that this security that you spoke of was not in the contract, why did you sign it ? A. He said the logs would be good for security; he told me he would give me security and I signed it. I asked him what the security was, and he said the logs was security; he told me that before, and then afterwards that the logs were security.” Under this testimony it can hardly be said there was any fraud, accident, or mistake, except mistake of law, in omitting the verbal agreement for security from the written contract. It was omitted in fact, and the plaintiff knew it, and assented to the verbal agreement for security. But it seems quite certain that Rafferty was induced to sign the written contract by means of the verbal agreement, and there is at least ample testimony to justify the jury in finding that such was the fact. It is still necessary, however, to recur to the other evidence in order to determine whether upon the whole it conforms to the legal requirements in such cases. E. W. Hepburn, another and a disinterested witness, was examined, and testified as follows : “ Q. Did you go and see Levi Rafferty and talk to him before you made this transfer to D. L. Ferguson? A. Yes, sir. Q. Where was this contract of December 2, 1882, made? A. At my place. Q. Who was present at your place at that time ? A. Nobody but the four of us, W. C. Hoover, D. L. Ferguson, T. L. Rafferty, and myself. Q. Who wrote that contract? A. D. L. Ferguson. Q. What, if anything, was said there between Ferguson and Rafferty with reference to security for the logs mentioned in that contract ? State what occurred there and what was said by the parties in that room. A. There was not a great deal said about it. When Rafferty allowed (insisted) he ought to have some security for the logs—that was either before or after this was written out—I don’t know which, but I rather think before it was signed— Mr. Ferguson told him he could hold the logs until he got the money; he allowed he ought to have something in the agreement, and Ferguson allowed that witnesses were as good as a bargain..... Q. Was your attention called to this as a witness? A. Yes, sir; he said Mr. Hoover and Mr. Hepburn could witness it. I was sitting between Ferguson and Levi Rafferty.” This testimony is corroborative of that of the plaintiff, and would also justify an inference that the signature of Rafferty was obtained by means of the verbal agreement in regard to the security. The testimony of Hoover was not taken, and the only remaining evidence as to what occurred at the time of the execution of the written contract is the testimony of D. L. Ferguson, the other party to the contract. He says he was present with the other parties named, when the agreement between himself and Rafferty was made, but gives no testimony whatever as to what was said at the time. There is but a single sentence in the whole of his testimony that relates in any manner to what was said by the parties when the contract was signed, and it is in these words : “ There was no other contract made except that made in the supplemental agreement.” Just what he means by this is not explained. The question to which the above was an answer is not printed, and it cannot be known whether his attention was called to the testimony of Rafferty and Hepburn as to the verbal agreement about security or not. Whether he meant to say there was no other written contract than the supplemental agreement we cannot know, but certain it is that his testimony as it stands means at the utmost nothing more than that in his opinion there was no other contract made than the supplemental agreement. He contradicts nothing that was testified to by Rafferty and Hepburn, although he wrote the agreement, was himself a party to it, and was present during the whole of the time of its preparation and execution. Such silence in the face of the opposing testimony is much more than mere negative testimony. It is highly persuasive evidence that the conversation testified to by the other witnesses actually took place just as they stated it. The ease then stands with the direct, positive, and uncontradicted evidence of two witnesses to the fact of the contemporaneous verbal agreement, and the non-denial of it by the other party. The testimony is precise, definite, distinct, positive ; the witnesses are not impeached or contradicted in any manner, and the story they tell is highly probable and reasonable. If their testimony is believed it is of an indubitable character in legal effect, and fully warrants the inference that the signature of Rafferty was obtained by means of the verbal agreement. This brings the case within the frequent rulings of this court on this subject, and justifies the learned court below in their action in admitting the evidence and in their treatment of it in the charge and answers to points. These several assignments of error are not sustained. There is no merit in the seventh assignment. The notice was at least sufficient to put an intending purchaser upon inquiry, and the whole question as to whether it was read at the sheriff’s sale and the defendant had opportunity to hear it, was very fairly treated in the general charge. The notice contained a distinct claim of title to the logs in Rafferty, and a prudent man inquiring of him, as he would be bound to do, would, it must be presumed, have been informed of the particular kind of title claimed and of the facts upon which it was based. Seventeenth assignment, which covers also the eighteenth and nineteenth. These all relate to the right of the plaintiff to maintain the action of replevin in his own name, without joining others who appear to be co-tenants in common with him of the land from which the logs were cut. The action was not brought by the plaintiff as one of several tenants in common to recover his undivided portion of the logs, but he asserted his right to recover and sought to recover the whole of the logs. The defendant claimed title to the whole of the logs under a sheriff’s sale of the title of D. L. Ferguson, and D. L. Ferguson’s title was derived exclusively from the sale made to him by the plaintiff. The defendant being a purchaser with notice of the plaintiff’s claim of title, is in no better position than D. L. Ferguson would have been if he had been the defendant. He at least took the logs and all the title he had to them came directly from the plaintiff. The sale was at least sufficient to pass over the logs to D. L. Ferguson, who actually took possession of the whole of them under his contract of sale with the plaintiff. The latter certainly had title enough to enable D. L. Ferguson, and through him the defendant, to get possession of the logs. In point of fact, neither D. L. Ferguson nor the defendant was ever molested or interfered with in any way, either in the taking or holding possession of the logs, or any of them, by any of the alleged co-tenants in common of the plaintiff, although five or six years had elapsed from the cutting at the time of the trial. Moreover, although Danver, who sold the timber to the plaintiff, was named in the contract of sale as guardian of two of the brothers of James Rafferty, who was the owner of the land from which the logs were cut at the time of his death, he assumed to sell the whole of the timber claiming he had a right to do so. Mrs. Martha Rafferty, who, as the mother of James, was tenant for life of the land and paid the taxes on it, testified that it was timber land, part of which had been cut off before her husband bought it, and that she consented to the sale of the timber by Danver to T. L. Rafferty, the plaintiff. Danver took a judgment note as trustee from T. L. Rafferty for $1,100, the whole of the purchase money of the timber, and entered it of record at once. None of the co-tenants ever made objection to the sale or set up any title to the timber against either D. L. Ferguson or the defendant. We think it clear from these facts that the plaintiff must be regarded as seeking to recover upon the whole title to the logs, with evidence of consent of the other parties in interest; especially of his mother, who, quite possibly, had a legal right as tenant for life to cut off all the timber, that being the main profit of the land: Williard v. Williard, 56 Pa. 119. This being so, his right to recover cannot be disposed of upon the assumption that he is simply one of several tenants in common seeking to recover for his undivided • interest only, and authorities to the effect that no recovery can be had upon such a title do not determine the case. It seems to us quite plain that, as between himself and D. L. Ferguson, or the defendant with notice, he had the right to the possession for the security of the purchase money, and at least a qualified title to the logs. In such circumstances the authorities are plain, that there may be a recovery. In Harlan v. Harlan, 15 Pa. 507, we said: “ It is well settled as a general principle, that in Pennsylvania replevin lies wherever one man claims goods in the possession of another, and this, whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession.” The same;, doctrine is repeated in Miller v. Warden, 111 Pa. 800, and in other cases. The case of Reinheimer v. Hemingway, 85 Pa. 432, is not in point, as it presents a different question growing out of entirely different facts. The defendant here sets up no adverse title to the logs, whether derived from a stranger or from any of the co-tenants. He literally claims upon the very title which he derived from the plaintiff, and seeks to impeach it for the mere purpose of avoiding payment of the purchase money, which he certainly cannot do. He never has been evicted from his possession which the plaintiff gave him, nor has his title even been threatened, yet he proposes to keep both the logs and tbeir purchase money, upon the mere allegation that others are interested in the logs with the plaintiff, although there is satisfactory evidence of their assent to the plaintiff’s action and claim of title. These several assignments of error are not sustained. The remaining assignments are without merit and are dismissed. The case was tried with much care, and an extremely lucid and able charge was delivered to the jury. It has been argued in this court with great force and ability by the learned counsel on both sides. It seems to us substantial justice has been done, and we are not convinced that any error occurred on the trial. Judgment affirmed.

WIEAND, Judge. On July 10, 1991, Leroy Barnum was operating a vehicle insured by State Farm Mutual Automobile Insurance Company (State Farm) when he was involved in an accident causing injuries to his person. Barnum received medical treatment for his injuries and thereafter made a claim against State Farm for first party benefits under the Motor Vehicle Financial Responsibility Law. State Farm questioned some of Barnum’s medical bills and submitted them to a Peer Review Organization for evaluation pursuant to 75 Pa.C.S. § 1797(b). The PRO determined that certain medical treatment was unnecessary. State Farm then refused to pay the unnecessary charges. Without seeking a reconsideration of the PRO determination, Barnum filed a civil action against State Farm in which he sought to recover his medical bills, plus interest, counsel fees and damages allowed by 42 Pa.C.S. § 8371. State Farm filed preliminary objections in the nature of a demurrer in which it contended that (1) Barnum had failed to exhaust his statutory remedy by failing to request reconsideration by the PRO, and (2) the provisions of 42 Pa.C.S. § 8371 were inapplicable to a claim for first party benefits under the Motor Vehicle Financial Responsibility Law. The trial court agreed and dismissed the complaint. Barnum appealed. The Motor Vehicle Financial Responsibility Law, according to recent amendment, permits insurers to utilize PROs to evaluate the utility and medical necessity of medical treatment provided to a person injured in a motor vehicle accident. See generally: Harcourt v. General Accident Ins. Co., 419 Pa.Super. 155, 160 n. 2, 615 A.2d 71, 74 n. 2 (1992), citing 21 Pa.Bull. 5601 (Nov. 1991). The Peer Review Process is set forth at 75 Pa.C.S. § 1797(b). Subparagraph (b)(2) thereof provides for reconsideration of a PRO determination as follows: (2) PRO reconsideration. — An insurer, provider or insured may request a reconsideration by the PRO of the PRO’s initial determination. Such a request for reconsideration must be made within 30 days of the PRO’s initial determination. If reconsideration is requested for the services of a physician or other licensed health care professional, then the reviewing individual must be, or the reviewing panel must include, an individual in the same specialty as the individual subject to review. In Terminate v. Pennsylvania National Ins. Co:, 422 Pa.Super. 92, 618 A.2d 1032 (1993), allocatur granted, — Pa. -, 631 A.2d 1010 (1993), the Superior Court held that this provision was mandatory and that the peer review procedure, once started, had to be exhausted before an action at law could be commenced in the courts. With respect to appellant’s argument that the word “may” was permissive and did not require a prior petition for reconsideration, the Court said: We find the appellant’s argument unpersuasive for several reasons. The appellant, first of all, is misguided if it believes that the word “may” is used to indicate that a party has a choice of either requesting reconsideration or appealing directly to a court of law. To the contrary, the use of the word “may” indicates a party has a choice between requesting reconsideration of the initial determination or accepting the initial determination as binding. “It is well settled that where the legislature provides a [statutory] remedy without preserving the parallel right to resort directly to the courts, that remedy is exclusive and must be strictly pursued.” Concerned Taxpay. v. Beaver Cty. Bd. of Assess., 75 Pa.Cmwlth. 443, 446, 462 A.2d 347, 349 (1983); accord Lashe v. Northern York County School District, 52 Pa.Cmwlth. 541, 546, 417 A.2d 260, 263 (1980). In such circumstances, we have interpreted words such as “may appeal” to indicate an aggrieved party must exhaust the statutorily defined remedy before proceeding to court. Concerned Taxpay., supra, 75 Pa.Cmwlth. at 443, 462 A.2d at 347 (words “may appeal” mean that taxpayer must pursue appeal before Taxpayer Board of Assessment). Accordingly, the statute does not indicate that a party in the Peer Review process can resort directly to the courts, but must either appeal within the Peer Review process or accept the PRO’s initial determination as binding. Id. 422 Pa.Super. at 98-99, 618 A.2d at 1035 (footnote omitted). The peer review process provides a strong incentive for insurance carriers to route disputed claims through this alternate dispute resolution process. Where the insurer denies a claim without first obtaining a PRO evaluation, the claimant may immediately commence a court action. If the court finds in favor of the claimant, the insurer becomes liable, in addition to the amount of the claim, for counsel fees, costs, and interest at the rate of 12%. Moreover, if the court finds that the insurer acted wantonly in denying a claim, treble damages may be awarded. Conversely, if the insurer uses the peer review process, its potential liability is limited to the amount of the claim plus interest. This feature of the law caused the Terminato Court to observe: [I]t appears the statute is structured to push the insurer to submit claims it considers dubious into the Peer Review process. We believe the statutory design evidences an intention to make the Peer Review process the primary system for initially evaluating challenged insurance automobile policy medical claims. To accept the appellant’s argument, we would have to provide insured individuals the unilateral right to circumvent the Peer Review process by allowing them to proceed at their inclination in a court of law. The statute does not lend itself to such an interpretation. Id. at 102, 618 A.2d at 1037 (footnote omitted). Subsection (b)(2) provides that a request for reconsideration by the PRO may be made within 30 days of the PRO’s initial determination. Where the legislature has provided a statutory remedy without preserving the parallel right of direct and immediate access to the courts, that remedy is exclusive and must be exhausted. Under the statutory procedure, an immediate resort to the courts is permissible only where the insurer denies a claim without first obtaining a PRO evaluation. Otherwise, an insured cannot proceed in the courts until reconsideration of an unfavorable PRO evaluation has been sought. To hold otherwise would be to defeat the purpose of and the benefits to be derived from the PRO procedure established by the legislature. Our construction of the statute is supported by administrative regulation appearing at 31 Pa.Code § 69.52(m). It is there provided that “[u]pon determination of a reconsideration by a PRO, an insurer, provider or insured may appeal the determination to the courts.” A court should not disregard or overturn an administrative agency’s construction of a statute unless it is clearly erroneous. Slovak-American Citizens Club of Oakview v. Pennsylvania Liquor Control Board, 120 Pa.Commw. 528, 532, 549 A.2d 251, 253 (1988). This is because administrative regulations may often serve to clarify an arguable vagueness existing in the statute. Pennsylvania Medical Society v. Foster, 137 Pa.Commw. 192, 199, 585 A.2d 595, 598 (1991). Thus, in this case, the regulations confirm the only logical interpretation to be given the statute. They confirm this Court’s decision to follow Terminato. Appellant argues further that the trial court erred when it dismissed his claim for punitive damages, based on alleged bad faith conduct by the insurer, pursuant to 42 Pa.C.S. § 8371. This statutory provision was a part of the same amendatory legislation which produced 75 Pa.C.S. § 1797. It provides as follows: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer. By its terms, the provision has general application to actions on insurance policies. The provisions of 75 Pa.C.S. § 1797, however, have specific application to claims for first party benefits under the Motor Vehicle Financial Responsibility Law. It is these claims which are subject to the PRO procedure. In such cases, if it is determined by a PRO or a court that medical treatment or rehabilitative services or merchandise for which the claim is made were medically necessary, the insurer can be made to pay interest at the rate of twelve (12%) percent and/or attorney fees as set forth in 75 Pa.C.S. § 1797(b)(5) and (6). If the insurer’s conduct was wanton, moreover, it can be made to pay treble damages. These remedies clearly are at variance with and in conflict with the general remedies set forth in 42 Pa.C.S. § 8371. When a general statutory provision conflicts with a specific provision and the two are applicable to the same matter, the legislature has provided as follows at 1 Pa.C.S. § 1933. Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail. The several sections of the statute here being examined cannot be reconciled. The damages specified by the legislature in the event of wanton or bad faith conduct by an insurer are different, and the rate of interest to be awarded is also different. The provisions of 75 Pa.C.S. § 1797 are narrowly limited to those situations in which a disputed claim is to be submitted to the PRO procedure. With respect to such claims, the procedure to be followed is set forth with specificity, and the remedy, whether the procedure is followed or not, is set forth with equal specificity. If the procedure is followed by an insurer, its liability cannot be greater than as therein set forth. If it follows the PRO procedure, it cannot be subjected to damages for bad faith. Because the two provisions were enacted at the same time and cannot be reconciled, the specific provisions of 75 Pa.C.S. § 1797 must be deemed an exception to the general remedy for bad faith contained in 42 Pa.C.S. § 8371. The provisions of 75 Pa.C.S. § 1797 are to be applied to claims for first party benefits under the Motor Vehicle Financial Responsibility Law. Accord: Danley v. State Farm Mutual Automobile Ins. Co., 808 F.Supp. 399, 401 (M.D.Pa.1992) (provisions of 75 Pa.C.S. § 1797 are impossible to reconcile with 42 Pa.C.S. § 8371, and courts have properly held that § 1797 provides exclusive remedy in auto insurance medical claim area.); Gavaghan v. Replacement Rent-A-Car, Inc., 811 F.Supp. 1077, 1081 (E.D.Pa.1992) (42 Pa.C.S. § 8371 can apply to claims brought pursuant to MVFRL as long as such claims do not involve first party benefits.); Elliott v. State Farm Mutual Automobile Ins. Co., 786 F.Supp. 487, 492-493 (E.D.Pa.1992). For all of the foregoing reasons, we hold that this case was correctly decided by the trial court. Order affirmed. . Although the trial court granted leave to file an amended complaint, it is readily apparent that appellant cannot file a pleading which will obviate the objections which State Farm has raised. The trial court's order, therefore, is final and appealable; it has put plaintiff out of court. See: Fizz v. Kurtz, Dowd & Nuss, Inc., 360 Pa.Super. 151, 153 n. 1, 519 A.2d 1037, 1038 n. 1 (1987); Urban v. Urban, 332 Pa.Super. 373, 378, 481 A.2d 662, 664-665 (1984); Freeze v. Donegal Mutual Ins. Co., 301 Pa.Super. 344, 349-350, 447 A.2d 999, 1002 (1982), aff’d, 504 Pa. 218, 470 A.2d 958 (1983). . See: 75 Pa.C.S. § 1797. . In view of the PRO decision affirming State Farm’s partial denial of appellant’s claim, it is difficult at this point to perceive bad faith in State Farm’s conduct. . Act of February 7, 1990, P.L. 11, No. 6, effective April 15, 1990.

The opinion of the court was delivered, January 9th 1872, by Agnew, J. Brickmaking is a useful and necessary employment, and must be pursued near to towns and cities where bricks are chiefly used. Brickburning, an essential part of the business, is not a nuisance per se: Attorney-General v. Cleaver, 18 Vesey, Jr. 219, 220. It, as many other useful employments do, may produce some discomfort, and even some injury to those near by. But it does not follow that a chancellor would enjoin therefor. The heat, smoke and vapor of a brick-kiln cannot compare 'witlx those of many manufactories carried on in the very heart of such busy cities as Pittsburg and Allegheny. A court exercising the power of a chancellor, whose arm may fall with crushing force upon the every-day business of men, destroying lawful means of support, and diverting property from legitimate uses, cannot approach such cases as this with too much caution. Its- aid is not of right but of grace, and it must be sure that the exercise of this kingly power is just, wise and proper, before it takes from a citizen his means of livelihood, and destroys the value of his property for legitimate uses. And more than this, it must look at the customs of the people, the characteristics of their business, the common uses of property and the peculiar circumstances of the place4-wherein it is called upon to exercise the power. In no other way can its justice, wisdom and propriety be exhibited in adjudicating upon the rights, interests and employment of the people subjected to its power. It requires no great or extraordinary skill to inform ms of the nature and effect of a brick-kiln, within whose walls dried clay is baked into bricks by means of wood and coal combined together as a fuel. It is a subject of common observation, and its effects are not so mysterious as to require the skill of the chemist to unfold their occult properties. In the present case the kiln of the defendant is situated on an outskirt of the city of Allegheny. The properties of the plaintiff and defendant lie adjoining each other, on the hillside overlooking the city, whose every-day cloud of smoke'from thousands of chimneys and stacks hangs like a pall over it, obscuring it from sight. This single word describes the characteristics of this city, its kind of fuel, its business, the habits of its people and the industries which give it prosperity and wealth. The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there. A chancellor cannot disregard all this. “You must look at it,” said Lord Cranworth, “not with a .view to the question whether abstractly that quantity of smoke was a nuisance, but whether it was a nuisance to the persons living, in the town.” And, as remarked by Lord Chancellor Westbury in the same case: “If a man lives in town of necessity he must submit himself to the consequences of the obligations of trades which may be carried on in his immediate neighborhood, which are actually necessary for trade and commerce, also for the enjoyment of property, and for the benefit of the inhabitants of the town. If a man live in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop.” Cited from Tipping v. St. Helena Smelting Co., 116 E. C. L. R. 608, by Thompson, C. J., in Rhodes v. Dunbar, 7 P. F. Smith 287-8. With these views in mind, an examination of the evidence in this case discloses no ground to move a chancellor to enjoin against the use of the defendant’s kiln, and thus to destroy his business and divert his property from a legitimate use. The gravamen of the plaintiff’s bill is that the smoke and gases from the defendant’s kiln injured and partially destroyed his grape-vines and fruit-trees, and make his dwelling uncomfortable. In regard to the injury to the vines and trees which is the chief ground of complaint, the plaintiff’s case is doubtful on two grounds. In the first place, his testimony as to the injury from the causes stated is counterpoised if not outweighed by the testimony of the defendant both in the number and skilfulness of the witnesses. And in the second place it is rendered more than doubtful by the testimony of the defence that the true cause of the blight in the vines is the nature, and cold and wet condition of the soil. The force of the rebutting evidence that the hillside is dry, and for the reason that water will not lie on a slope; is broken by the consideration known to every common observer that water following the lines of stratification will exude from hillsides, oftentimes in large quantities and the whole year round. To entitle a plaintiff to an injunction he must make out a plain case of injury and damage. “ If the injury be dqubtful, eventual or contingent, equity will not interfere by injunction Rhodes v. Dunbar, 7 P. F. Smith 287; and a “chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing, and leaving the party to his redress at the hands of a court and jury Richard’s Appeal, 7 P. F. Smith 113, 114. In regard to the alleged annoyance to the dwelling-house by the smoke from the kiln, nothing needs to be said except that this case is clearly within the principles ruled in Richard’s Appeal, supra. After a full and careful consideration of the case, we are compelled to reverse the decree of the Court of Common Pleas and dismiss the bill of the plaintiffs at their costs and without prejudice to any right they may have to recover in an action at law. Decree accordingly.

Opinion by Mr. Justice Kephart, Plaintiff was engaged by oral contract as district gales manager for defendant, a corporation formed for the purpose of marketing debenture bonds of the Community Finance Service, Inc. His contract gave him the exclusive agency for these bonds in Philadelphia and Reading, except as to sales to members of the family of Charles G. Mueller, vice president of defendant company, who lived in these districts. He was to receive fifteen percent of all sales in these places regardless of who made them, and, in addition, one share of the stock of the Finance Service, Inc., for every one hundred dollar bond sold. As agent and sales manager of the company, he supervised sales made by agents employed at his expense. Other sales, however, were made within his districts without his knowledge. An account of sales was made from time to time, and, in February, 1922, an oral settlement was had between the parties, plaintiff being paid $300. He then gave the following receipt: “In consideration of my receiving......Three Hundred Dollars ($300), I hereby release Finlaw, Mueller and Company from any further liability for commissions or any other compensation as of the day and date above stated.” Thereafter, he continued to act as district sales manager until informed by the defendant in July, 1923, that his services were no longer required, since the Securities Act of 1923 had forced the company to stop selling bonds. The principal question involved in this appeal is whether equity has jurisdiction to entertain the bill for accounting and discovery. This question must be determined from the face of the bill: Adams’s Appeal, 113 Pa. 449, 455. Plaintiff’s bill charged there were sales of bonds before February, 1922, not accounted for at the time of the oral settlement, and that he was induced to give the receipt above noted by false and fraudulent statements made with the intent to cheat and defraud him; and that sales were made since February that have never been accounted for. He further avers that he has no means of ascertaining the names of the persons who bought bonds, nor the pet amounts of the sales, since access to the books of the company has at all times been denied him; and that a fiduciary relation existed between himself and defendant. The bill also complained of defendant’s failure to deliver the shares of stock to which plaintiff was entitled in the agreement. Defendant contends that, under these averments, plaintiff has an adequate remedy at law, the accounting involved being unilateral, and no discovery was necessary. While the Practice Act of 1915 enables matters requiring an account to be determined at law, (Miller v. Belmont Packing & Rubber Co., 268 Pa. 51; Shaw v. Newingham, 279 Pa. 180), the remedy is not exclusive, but is concurrent with equity. The mere fact that a remedy at law exists is not sufficient to oust equitable jurisdiction. The question is whether the remedy is adequate or complete: Edison Illuminating Co. v. Eastern Penna. Power Co., 253 Pa. 457, 465. “The instances in which the legal remedies are held to be inadequate, and therefore a suit in equity for an accounting proper, are: 1. Where there are mutual accounts between the plaintiff and the defendant, — that is, where each of the two parties has received and paid on account of the other; 2. Where the accounts are all on one side, but there are circumstances of great complication or difficulties in the way of adequate relief at law; 3. Where a fiduciary relation exists between the parties, and a duty rests upon the defendant to render an account”: Pomeroy on Equity Jurisprudence (4th ed.), p. 3368, sec. 1421. With the first class of cases enumerated above, we are not now concerned, since the account is here all on one side. We must determine whether the averments of the bill bring this case within either of the other classes. Equitable relief will not ordinarily be granted where the account is all on one side: see Holland v. Hallahan, 211 Pa. 223; Graham v. Cummings, 208 Pa. 516, 532. But equity will take jurisdiction notwithstanding tbe accounting is on one side where it is complicated: Holland v. Hallahan, supra. It must appear that the complications or difficulties in the way are such that adequate relief at law cannot be given. No satisfactory tést can be laid down to determine when an account is sufficiently complicated to enable equity to take hold. In other jurisdictions, the rule has been established that an account must be so involved that the court would be incompetent to examine it with necessary accuracy. The same result would follow under our Practice Act, and each case must be decided under its own particular facts. But where the matter to be determined involves the accounts of different parties, to which debit and credit items attach and are intermingled, it can generally be held that a jury would not be qualified to state such an account. We might even go farther and say that equity will entertain jurisdiction where it is doubtful whether adequate relief could be had at law: Southampton Dock Co. v. Southampton, etc., Board, L. R. 11 Eq. 254, 260. In the case now before us it does not seem to follow as a necessary consequence of the averments of the bill that the account would be unusually complicated, nor does it appear that there are real difficulties in the way of adequate relief at law. It is true, however, that plaintiff has made allegations of fraud, and these may be sufficient in connection with the other averments, to justify the decree of the court below: see Crennell v. Fulton, 241 Pa. 572; Lafean v. Caramel Co., 271 Pa. 276. It has been stated that, where the accounts are all oh one side, but a discovery is necessary, there is a proper basis for equitable jurisdiction: Graham v. Cummings, supra; 2 Beach on Modern Equity Jurisprudence, p. 902, sec. 839. The legitimate function of discovery is to furnish evidence; it is not the source of jurisdiction. Discovery cannot extend equitable jurisdiction to capaes otherwise cognizable golely at law. Where equitable jurisdiction exists, discovery may be an aid to its exercise: see Holland v. Hallahan, supra, at p. 226; Pomeroy on Equity Jurisprudence (4th ed.) p. 346, 348, secs. 225, 226. Pomeroy observes (p. 3372, see. 1421, n3) that the rule seems to be applicable only to cases partaking of a fiduciary character. This brings us to a consideration of whether this case falls within the third class of cases enumerated above. Where a well recognized fiduciary relation exists, as in the case of trusts or partnerships, it is clear that a bill for an accounting will be granted. Here, however, the relation between the parties is that of principal and agent, and, while it may partake of a fiduciary character (Leedom v. Palmer, 274 Pa. 22, 25), ordinarily it does not: Grace v. Moll, 285 Pa. 353. Consequently, the general rule is that the mere relation of principal and agent is not sufficient to warrant a decree for an accounting: King v. Rossett, 2 Younge & J. 33, 148 Eng. Rep. 820; Navulshaw v. Brownrigg, 1 Sim., N. S. 573, 61 Eng. Rep. 221; Hemings v. Pugh, 4 Gift. 456, 66 Eng. Rep. 785; Noxon v. Bright, L. R. 4 Ch. 292; Crothers v. Lee, 29 Ala. 337 (attorney and client); Coquillard v. Suydam, 8 Blackf. (Ind.) 24 (agency for a single transaction) ; Powers v. Cray, 7 Ga. 206. See also Long v. Cochran, 9 Phila. 267; Pomeroy on Equity Jurisprudence, p. 3370, sec. 1421, n3. But where the principal has reposed confidence in his agent, and the matters for which an accounting is sought are peculiarly within the knowledge of the latter, equity will assume jurisdiction: Halstead v. Rabe, 8 Port. (Ala.) 63; Taylor v. Tompkins, 2 Heisk. (Tenn.) 89; Hale v. Hale, 4 Humph. (Tenn.) 183; Thornton v. Thornton, 31 Gratt. (Va.) 212; Makepiece v. Rogers, 11 Jur., N. S. 215; Hemings v. Pugh, supra; Mackenzie v. Johnston, 4 Madd. 373, 56 Eng. Rep. 742; Noxon v. Bright, supra; Southampton Dock Co. v. Southampton, etc., Board, supra. Where the bill, as in this case, is brought by the agent against Ms principal, th@j*e is usually no duty to account, since as a general rule, no trust or confidence is reposed in the principal: Padwick v. Stanley, 9 Hare 627, 68 Eng. Rep. 664; Smith v. Leveaux, 2 De Gex, J. & S., 46 Eng. Rep. 274; Nash v. Burchard, 87 Mich. 85; see also Bispham’s Principles of Equity (10th ed.) p. 762, sec. 484. But where the effective working of the agency contract and the conduct of the parties necessarily imposes a trust relation on the principal, who is in receipt of a sum of money coming from numerous sources, as in a case where the agent’s salary depends upon the profits, equity will order an accounting: Harrington v. Churchward, 3 Jur., N. S., 576; Shepard v. Brown, 4 Giff. 208, 66 Eng. Rep. 681; Buel v. Selz, 5 Ill. App. 116. The principle of these authorities clearly governs the case at bar. Plaintiff’s compensation depended upon the total net sales made by defendant company within his districts. All matters concerning sales in that territory not made by plaintiff personally, or by his own agents, were .entirely within the knowledge of defendant, which necessarily kept the accounts, and plaintiff was compelled to trust to the good faith of its officers. Under the circumstances, there was clearly a duty to account. The remaining assignments of error raise many questions as to whether the agency was exclusive, and whether it covered Reading. The court below found the facts adversely to defendant, and, there being evidence to support the finding, the decision of the chancellor is final: Milford Borough v. Burnett, 288 Pa. 434, 442; Glen v. Trees, 276 Pa. 165. The receipt released defendant from any further liability for commissions or compensation as of February 16, 1922. It did not attempt to control future sales under the contract, and, under the facts as found, its efficacy as to commissions due on prior sales was destroyed. The contention that the future sales were to be at a fixed price, if not answered by the court below, may be properly considered when the items come before the court for determination in the accounting. Further complaint is made in regard to the decree of specific performance of the agreement to deliver shares of stock. This question was not argued in the court below, and is not properly before us. The decree of the court below is affirmed at the cost of appellant.

Opinion by Mr. Justice Thompson, The question raised in this appeal is whether the legacies in the will of John Gilmor deceased lapse. John Gilmor, the testator, died November 30, 1889, unmarried, leaving surviving him an unmarried sister, who died February 21, 1891. He made his will August 18, 1883, and on September 21, 1888, adding a codicil, then republished it. By his will before this republication he gave to his sister Eliza the income of his estate during her natural life, and upon her death directed his executors to convert the estate into money, and devised it to the following named persons, who were each to receive one share, viz.: David M. Gilmor, Mary E. Ahl, Nannie Herr, Lydia B. Wilson, William Gilmor, Samuel Dorrance, James Dorrance, Senior, William Dorrance, Eliza Robinson, Martha A. McClellan, Samuel P. Cummings and William B. Cummings. The auditor appointed to make distribution finds “ that the only codicil is dated September 21, 1888, and in the latter part of the summer of 1889 Mr. Hastings Gehr and George McDowell visited testator, who produced his will and at his request and in his presence they witnessed the same. Before this was done, testator, in their presence, interlined at the bottom of the first page the words ‘ or to their heirs.’ After making this addition and after the witnesses had subscribed their names, the testator republished both the will and codicil.” Before this republication he added after “ as follows” the words “ or to their heirs; ” and after William Gilmor, “ Deed ; ” Samuel Dorrance, “ Desed; ” James Dorrance, Senior, “ Deceased; ” Eliza Robinson, “Deseased;” William Dorrance, “Deceased;” Martha A. McClellan, “Dsd;” Samuel P. Cummins, “Desed;” William B. Cummins, “Deed.” This will speaks from the date of its republication. In Coale v. Smith, 4 Pa. 386, it was said: “ The effect of a new publication is that all which the words embrace at the time when the new publication is made, shall pass thereby ; or, to put it more clearly, when a man republishes his will the effect is that the terms and words of the will should be construed to speak with regard to the property the testator is seized of, and the persons named therein, at the date of the republication, just the same as if he had such additional property or such persons being in esse at the time of making his will, the conclusion from the fact being that the testator so intended. And this is a conclusion of law, as we have seen, not to be contradicted by any supposed absence of intention on the part of the testator, unless a contrary intent be manifested by something appearing in the codicil.” In Linnard’s Appeal, 93 Pa. 316, Mr. Justice Sterrett said: “ A duly executed codicil operates as a republication of the original will so as to make it speak as of the date of the codicil : Coale v. Smith, 4 Barr, 386; and it not only operates as an adoption of the prior will to which it refers, but also as a revocation of an intermediate will. In Wikoff’s Ap., 3 Harris, 281, Chief Justice Gibson, in speaking of interlineations proved to be in the handwriting of a testatrix, says: ‘ The presumption is that they were made at or before the time when the will was prepared for the final act.’ ” The testator’s sister having died, his executors filed their account which was referred to the auditor to make distribution. Before him the appellants as heirs at law and next of kin of legatees named in the will claimed six twelfths of the estate, upon the ground that the testator intended by the words “ or to their heirs ” to substitute for the deceased legatees their next of kin. Upon the question of compensation of executors, parol evidence was offered for the purpose of showing that the name of one of the executors was inserted in the will, and on cross-examination one of the witnesses testified: “ Q. You witnessed both the will and the codicil that day? A. Yes, sir. Q. Did he submit it to you for your opinion ? A. He asked about those people that were dead. I told him it might lapse and he added “ their heirs.” Q. At that time did you read over the will? A. Yes, sir. I looked at the will.” The same witness was recalled and testified as follows, viz.: “ Q. Do you know in whose handwriting this will is ? A. The whole will is in the handwriting of John Gilmor, except the word ‘ witness ’ and ‘ H. Gehr,’ and ‘ G. D. McDowell.’ Q. Do you know whether this will was all written, just as it now is, at one time ? A. ‘ Or to their heirs ’ was added. Q. In what, connection ? ‘ I give devise and bequeath in as follows, or to their heirs ’ on the last line of the first page — the last four words on the first page — you say that they were not in as orig inally written? A. They were not. Q. On the second page of the will, and the 18th line, were the words ‘ deceased ’ (looks to me like ‘ desd ’) was it in as originally written ? A. The word ‘ desd.’ Q. Was it in originally? A. No, sir. Q. Whose handwriting are the words ‘or to their heirs?’ A. John Gilmor’s. Q. In whose handwriting are the words ‘ desd.’ A. John Gilmor’s. Q. Are those the only alterations that you notice in the will and codicil ? A. I believe so. As I said before, when I saw the will William C. McClelland’s name was not in as one of the executors. Q. At the time the will and codicil were witnessed by yo.u were the words you speak of in the will or were they made subsequently. Was it before that day or not ? A. These were all in before that day. Q. The words ‘ or to their heirs ’ were put there by Mr. Gilmor ? A. In our presence, at the time we witnessed the codicil. Q. Were they put there before or after you signed it ? A. Before. We did not witness it until about the latter part of the summer of 1889. Q. At that date of the codicil do you remember whether these other alterations in the will you have spoken of were in ? A. All the alterations were put in at the same time. Q. Will you please state if you know how John Gilmor came to add these words ‘ or to their heirs ’ and the word ‘ deceased ? ’ A. I told him that Martha McClellan’s might lapse; I knew she was dead. Q. Did he know she was dead ? A. Yes, sir. Q. What did he say or do in consequence of that? A. He said he would alter it the way he did.” The auditor finds “ that William Gilmor, Samuel Dorrance', James Dorrance, William Dorrance, Martha A. McClellan, Samuel B. Cummins and William P. Cummins, named in the will, are dead, were all dead before the testator and were all dead at the time of republication above mentioned, which fact was known to testator at that time.” The learned judge below sustained the auditor in not considering this testimony, because an attempt by extrinsic testimony to prove by parol the intention of the testator. The rule is well settled that extrinsic evidence cannot be adduced to qualify, explain, alter or contradict the language, of a will, but it must stand as written, where the intention is clearly expressed and the objects of the boúnty are definitely ascertained. This rule has been rigidly maintained and doubtless for the protec tion of estates will continue to be so by judicial decisions. While this is true for some purposes proofs dehors the will may be admitted. It is said in Schouler on Wills, section 579: “ But to aid the context by extrinsic proof of the circumstances and situation of the testator when it was executed is constantly permitted at the court’s discretion and this constitutes a proper, indeed often an indispensable, matter of inquiry when construing a will. For whatever a will may set forth on its face, its application is to persons and things external and hence is admitted evidence, outside the instrument, of facts and circumstances, which have any tendency to give effect and.operation to the terms of the will, such as the names, descriptions, and designations of beneficiaries named in the will, the relation they occupy to the testator, whether testator was married or single, and who were his family, what was the state of his property when he made his will, and when he died, and other like collateral circumstances. Such evidence being explanatory and incidental is admitted not for the purpose of introducing new words or a new intention into the will but so as to give an intelligent construction to the words actually used, consistent with the real state of the testator’s family and property; in short, so as to enable the court to stand in the testator’s place, and read it in the light of those surroundings under which it was written and executed.” In Jarman on Wills, volume 1, section 394, it was said: “ Though it is (as we have seen) the will itself • (and not the intentionas elsewhere collected) which'constitutes the real and only subject to be expounded, yet in performing this office a court of construction is not bound to shut its eyes to the state of facts upon which the will was made; on the contrary, an investigation of such facts often materially aids in elucidating the scheme of disposition which occupied the mind of the testator. To this end it is obviously essential that the judicial expositor should place himself as fully as possible in the situation of the person whose language he has to interpret, and guided •by the light thus thrown on the testamentary scheme he may find himself justified in departing from a strict construction of the testator’s language, without allowing conjectural interpretation to usurp the place of judicial interpretation.” It is said in Wharton on Evidence, section 992, in speaking of the exception when extrinsic evidence may be resorted to: “ What is said at the time of the execution and attestation is admissible as part of the res gestee, though not to contradict the will.” Again in section 999: “ In construing a will so is this position accurately expressed by Blackburn, J., the court is entitled to put itself in the position of the testator and to consider all the material facts and circumstances known to the testator with reference to which he is taken to have used the words in the'will and then declare what the intention evidenced by the words used with reference to these facts and circumstances, which were (or ought to have been) in the mind of the testator when he used those words.” 1 It was therefore competent for the purpose of ascertaining the intention of the testator to show that at the time of the republication of his will the words “ or to their heirs ” were added; that the word “ deceased ” was added after the name of each of the legatees who were dead, and the circumstances under which it was so added. While this evidence cannot be resorted to either to control or modify the intention of the testator, it may serve to aid in ascertaining what the testator did intend. It is clear that from the fact that he republished his will so modified, and inserted at the time these words, indicating that the legatees in question were dead, that he intended “ or to their heirs ” as words of substitution. When the original will was executed the legatees in question were alive and when the republication took place thqy were dead. He therefore added after their names “ deceased, ” and thus clearly indicated that as they were dead they were not to receive the. legacies. Such the case, in order to indicate who were to receive them, he wrote before the list of their names “ or to their heirs.” It seems manifest that in making this republication and in writing “deceased” after the names of these legatees he intended to designate the persons who are to take the legacies in lieu of them. It is contended however that the word “ or ” is to be read as “ and,” reading thus “ and to their heirs,” and so reading them they became words of limitation and not of purchase. Words have been transposed to carry out the evident intention of the testator. “ Or ” has been read as “ and ” and “ and ” has been read as “ or.” This has been done when it has been necessary to reach the true meaning of a will. No word will be rejected if an intelligent meaning can be given to it. In Gittings v. Mc-Dermott, 2 Mylne and Keene, Chancery Reports, 75, it is said: “ The force of the disjunctive word ‘ or ’ is not easily to be got over. Had it been ‘ and ’ the words of limitation would of course, as applied to a chattel interest, have been surplusage, but the disjunctive marks, as plainly as possible, that the testator by using it intended to provide for an alternative bequest namely to the legatees if they should survive and if they should not to their heirs.” In Jarman on Wills, vol. 1, star page 486, it is said : “ But since Grey v. Pearson the cases last noticed have lost much of their weight as authorities for applying to any given case the rule which would change ‘and’ into ‘or’ in order to prevent one member of a compound sentence being rendered inoperative. Though it be a canon of construction that effect is if possible to be given to every word used, it is one which must bend to circumstances, and where the result of changing ‘ and ’ into ‘ or ’ would be only to render one member of the sentence inoperative instead of the other the change certainly ought not to be made. It does not appear to have been made in any case since Grey v. Pearson, which indeed was treated by Sir J. Rómilly as having overruled Bell v. Phyn, and Maverty v. Stroud, as well as Brownsword v. Evans.” In Appletown v. Rowley, 8 L. R. Eq. 145, it was said: “ Where the word ‘ or ’ is used it is intended to prevent a lapse. If in this case the gift after the life estate had been to Sarah Gavwood and Alice Key ‘ or ’ their heirs or representatives I should follow the decision In re Porter’s Trust, In re Newlin’s Trust, and Salsbury v. Petty, and should have held that the children or representatives took by way of substitution, but here unfortunately it is ‘ and ’ their heirs and representatives.” In Morgan v. Thomas, 9 L. R., Q. B. D. 645, S.ir George Jessel illustrated in a somewhat ludicrous way the fallacy of changing the natural meaning of words. He says: “ You will find it said in some cases that ‘ or ’ means ‘ and ’ but ‘ or ’ never does mean ‘ and ’ unless there is a context which shows it is for ‘ and ’ by mistake. Suppose a testator said I give the black cow on which I usually ride to A. B., and he usually rode on a black horse, of course, the horse would pass, but I do not think any annotator of cases would put in the marginal notes that ‘ cow ’ means ‘ horse.’ ” In Griffith v. Woodward, 1 Yeates, 318, it was said: “ Courts of justice will trans pose the clauses of a will and construe ‘or’ to be ‘and’ and ‘ and ’ to be ‘ or ’ only in such cases when it is absolutely necessary so to do, to support the evident meaning of the testator. But they cannot arbitrarily expunge or alter words without such apparent necessity.” No reason can be adduced in this case to show a necessity for the change of the word “ or ” to “ and.” The republication of the will, the knowledge of the death of the legatees at that time, the writing the word “ deceased” after these names, and before the list of legatees “or to their heirs ” indicate words of substitution and that “ or ” was clearly intended to be used for that purpose. It is contended the position of the words “ or to their heirs ” is such they cannot have any effect. The will originally read: “ I give and bequeath in as follows, “ and then follow the names of the legatees. At the republication the words “Or to their heirs ” were added after “ as follows.” It is clear that the intention was that these words were intended to apply to the respective legatees. The appellees substantially rest their contention upon Sloan v. Hanse, 2 Rawle, 28, and Barnett’s Appeal, 104 Pa. 842. In the first case, decided before the act of 1883 in regard to passing estates without words of inheritance, the legatee was dead; and, the fact being unknown to the testator, that event was not in any degree contemplated by him, it is said : “ Had the testator meant to provide against accident from the death of either of the principal objects of his bounty it is reasonable to suppose he would, instead of leaving his meaning to conjecture, have said so in terms. He has not done so and the inference to be drawn from the use of a copulative instead of a disjunctive is too feeble to disinherit the heir.” But in the present case the death of the legatees having taken place before republication he added after each of them the word “ deceased ” to indicate their death and then “ or to their heirs.” He thus intended to use woz’ds of substitution. In other words he intended to exclude a lapse and to indicate those who should take. In the second case, Barnett’s Appeal, the will devised to the four sisters of the testator to each one fourth “ to them and to their heirs.” Two of the sisters at the time of the execution of the will wez’e dead. The decision there was that the words “ and to their heirs ” were words of limitation and that the testator did not intend them as words of purchase. It was said in that case: “ There are several cases where the word ‘ heirs ’ has been held to mean children, but they were all instances where such was the intention of the testator as gathered from the will itself. This will contains nothing from which such an intent' can be inferred.” The difference between that case and the present one is marked. The words there used are “ to them and to their heirs,” while here the word “ deceased” is written after the legatees, and the words used are “ or to their heirs.” From the will itself the intent is clear that when the testator republished it and altered its language, inserting the word “ deceased” and adding “or to their heirs,” he intended words of substitution and not of limitation. These words being those of substitution, the persons who thus are intended to take can be clearly ascertained. In McKee’s Appeal, 104 Pa. 573, it is said: “ In a bequest of personalty, unless a contrary intent is indicated by the will, the word heirs signifies heirs as ascertained by the statute of distribution: Baskin’s Appeal, 3 Pa. 304, Eby’s Appeal, 84 Pa. 241; Bender’s Appeal, 3 Grant, 210.” In Ashton’s Appeal, 134 Pa. 395, Mr. Justice Stebkett says : “ When used in a gift of personalty it is very frequently employed to denote those who are entitled to take under the statute of distribution unless there is something to indicate a contrary intention.” We have then in this case words substituting persons to receive as such and such persons clearly ascertainable, and therefore the decree of the orphans’ court is reversed and the record remitted for further proceedings, the appellees to pay the costs of this appeal.

Opinion, Mr. Justice Mitchelu: The writing in question is clearly testamentary. Although it does not on its face purport to be a will, and in form is not a command, but a request, addressed to no special person by name, but plainly to those who should have the possession or control of her property, it has the essential element of being a disposition of property to take effect after death, and the precatory form is therefore immaterial: Fosselman v. Elder, 98 Pa. 159. It being undisputed that tbe paper is in the handwriting of the decedent, and being testamentary in character, the only question left upon its validity as a will is the sufficiency of its execution by the signature “ Harriet.” The paper is proved to have been written after the passage of the act of June 8, 1887, P. L. 332, and the fact that the decedent was a married woman is therefore unimportant. That act repealed the requirement that a married woman’s will should be executed in the presence of two Avitnesses, neither of whom should be her husband, and put her, in respect to signature by herself, upon the same footing as men and unmarried Avomen. No greater effect can be attributed to the statute. It certainly was not intended to authorize a. married woman to execute a will any more loosely than other persons. We are therefore remitted to the general question whether a signature by the first name only may be a valid signing of a will under the act of 1833 and its supplements. The condition of the law before the passage of the wills act of 1833 is well known. By the English statute of frauds all wills as to land were required to be in writing, signed by the testator. Under this act it was held that the signature of the testator in any part of the instrument was sufficient: 1 Redf. on Wills, c. 6, § 18, pl. 9, and cases there cited. The same construction was given to the law in Pennsylvania, and under the act of 1705, 1 Sm. L. 33, which required wills of land to be in writing, and proved by two or more credible witnesses, etc., it was even held that a writing in the hand of another, not signed by the testator at all, might be a good will: Rohrer v. Stehman, 1 W. 463. In this state of the law the act of 1833 was passed. It was founded on the English statute of frauds. 29 Car. II., the phraseology of which it follows closely, but with the important addition that the will shall be signed “ at the end thereof.” In making this change, it is undoubtedly true, as suggested by Strong, J., in Vernon v. Kirk, 30 Pa. 222, that the legislature “ looked less to the mode of the signature than to its place.” Accordingly, the statute makes no definition of a signature, or of the word, signed. “ It was only by judicial construction that.....(the statute) was made to require.....the testator’s signature by his name: ” Strong, J., Vernon v. Kirk; and that judicial construction which held that a mark was not a valid signature: Asay v. Hoover, 5 Pa. 21; Grabill v. Barr, 5 Pa. 441, decided in 1846, was changed, it may be noted, by the legislature as soon as their attention was directed to it: Act January 27, 1848, P. L. 16. The purposes of the act of 1883 were accuracy in the transmission of the testator’s wishes, the authentication of the instrument transmitting them, the identification of the testator, and certainty as to his completed testamentary purpose. The first was attained by requiring writing instead of mere memory of witnesses, the second and third by the signature of testator, and the last by placing the signature at the end of the instrument. The first two requirements were derived from the English statute; the third was new, (since followed by the act of 1 Viet. c. 26,) and was the result of experience of the dangers of having mere memoranda or incomplete directions taken for the expression of final intention: Baker’s App., 107 Pa. 381; Vernon v. Kirk, 30 Pa. 223. These being the purposes of the act, and the legislature not having concerned itself with what should be deemed a signing, we must look dehors the statute for a definition. As already said, the act is founded on the statute of frauds, 29 Car. II. Under that act it has been held that the signing may be by a mark, or by initials only, or by a fictitious or assumed name, or by a name different from that by which the testator is designated in the body of the will: 1 Jarman on Wills, *78; 1 Redf. on Wills, c. 6, § 18, and cases there cited. In this state, as already seen, it was held, on a narrow construction of the act of 1833, that a mark was not a signing; but on the other points, so far as they have arisen, our decisions have been in harmony with those of the English courts. Thus, in Long v. Zook, 13 Pa. 400, the will of David Long was held to be validly executed by his mark, although the mark was put to the name of Jacob Long. In Vernon v. Kirk, 30 Pa. 218, “Ezekiel Norman, for Rachel Doherty, at her request,” was held to be a valid signing under the act. And in Main v. Ryder, 84 Pa. 217, it may be noted that a mark was held to be a good signature, (subsequent to the act of 1848,) though put to a name which was not the testator’s real or at least his original name, though it was one by which he had been known for some years in his own neighborhood. No question was raised against the will on this point. The precise case of a signature by the first name only, does not appear to have arisen either in England or in the United States; but the principles on which the decisions already referred to were based, especially those in regard to signing by initials only, are equally applicable to the present case, and additional force is given to them by the decisions as to what constitutes a binding signature to a contract under the same or analogous statutes. Browne, On-the Statute of Frauds,'§ 862, states the rule thus: “ In cases where the initials only of the party are signed, it is quite clear that, with the aid of parol evidence which is admitted to apply to them, the signature is to be held valid.” And see Palmer v. Stephens, 1 Den. 478; Sanborn v. Flagler, 9 Allen 474; Weston v. Myers, 33 Ill. 432; Salmon Falls Co. v. Goddard, 14 How. 446; Chichester v. Cobb, 14 Law T., N. S., 433. Though, therefore, we find no precise precedent, yet the analogies are all favorable, rather than otherwise, to the sufficiency of a signing by first name only, if it meets the other requirements of the act. These are matters depending on circumstances which will be considered further on. Looking beyond the decisions to the general use of language, what is understood by signing, and signature? Webster defines to sign as “to affix a signature to; to ratify by hand or seal; to subscribe in one’s own handwriting;” and signature as “ a sign, stamp, or mark impressed;.....especially the name of any person written with his own hand, employed to signify that the writing which precedes accords with his wishes or intentions ; a sign manual.” All the definitions include a mark, and no dictionary limits a signature to a written name. There can be no doubt that historically, and down to very modern times, the ordinary signature was the mark of a cross; and there is perhaps as little question that in the general diffusion of education at the present day the ordinary use of the word implies the written name. But this implication is not even yet necessary and universal. The man who cannot write is now happily an exception in our commonwealth, but he has not yet entirely disappeared, and in popular language he is still said to “ sign,” though he makes only his mark. Thus in Asay v. Hoover, 5 Pa. 26, the witness says: “ The name was written after the will was read to her, and after she had signed it. ... . She was reclining in bed when she signed it,” although the signature the witness was testifying to was only a mark. But, even in the now usual acceptation of a written name, signature still does not imply the whole name. Custom controls the rule of names, and so it does the rule of signatures. The title by- which a man calls himself and is known in the community is his name, as in Main v. Ryder, supra, whether it be the one he inherited or had orginally given him or not. So the form which a man customarily uses to identify and bind himself in writing is his signature, whatever shape he may choose to give it. There is no requirement that it shall be legible, though legibility is one of the prime objects of writing. It is sufficient if it be such as he usually signs, and the signatures of neither Rufus Choate nor General Spinner could be rejected, though no man, unaided, could discover what the ragged marks made by either of those two eminent personages were intended to represent. Nor is there any fixed requirement how much of the full name shall be written. Custom varies with time and place, and habit with the whim of the individual. Sovereigns write only their first names, and the sovereign of Spain, more royally still, signs his decrees only, “I, the King,” (Yo el Rey.) English peers now sign their titles only, though they be geographical names, like Devon or Stafford, as broad as a county. The great Bacon wrote his name, Fr. Verulam, and the ordinary-signature of the poet-philosopher of fishermen was Iz: Wa:. In the fifty-six signatures to the most solemn instrument of modern times, the Declaration of Independence, we find every variety from Th. Jefferson to the unmistakably identified Charles Carroll, of Carrollton. In the present day, it is not uncommon for business men to have a signature for checks and banking purposes somewhat different from that used in their ordinary business, and, in familiar correspondence, signature by initials, or nick-name, or diminutive, is probably the general practice. What, therefore, shall constitute a sufficient signature must depend largely on the custom of the time and place, the habit of the individual, and the circumstances of each particular case. As already seen, the English and some American cases hold that a signature by initials only, or otherwise informal and short of the full name, may be a valid execution of a will or a con tract, if the intent to execute is apparent. To this requirement our statute adds that the signature must be at the end, as evidence that the intent is present, actual, and completed. On this point of the completed act, the use of the ordinary form of signature is persuasive evidence, and the absence of it may be of weight in the other scale. As well suggested by the learned judge below, if a will drawn with formality, or in terms that indicate the aid of counsel, or the intent to comply with all the forms of law, be signed with initials or first name only, doubt would certainly be raised as to the completed purpose of the testator to execute it, and if then it appeared that his habit was to sign his name in full the doubt might become certainty; while, on the other hand, if it were shown that he usually, or even frequently, signed business or other important papers in the same way, the doubt might be dissipated. As in all cases where the intent is the test, there can be no hard and fast legal rule as to form. The statute requires that the signature shall be at the end, and that requirement must be met without regard to intention, but what shall constitute a signature must be determined in each case by the circumstances. Tested by these views, the will in the present ease appears to have been well executed. Of the handwriting and of the identity of the testatrix there is no question, and her completed intent to execute the paper, as the expression of her testamentary wishes, is attested at the end of it by a signature admitted to be made by her, and shown to be in the form which she habitually used. The writing has not the usual formalities of a will, but is in form a letter, addressed to no one by name, but clearly intended for her mother, or such of her family as should assume control of her property after her death; and the form of the instrument might well account for the signature she was accustomed to use, were it not still more clearly explained by the unfortunate differences with her husband, and her repugnance to using his name, as shown by her avoidance of it in her correspondence, and her direction not to put it on her tombstone. On the evidence, it is clear that the testatrix intended this as a complete execution of the instrument, and we find nothing in the law to defeat its validity for that purpose. Judgment affirmed.

OPINION OF THE COURT PAPADAKOS, Justice. Once again this Court is called upon to decide whether a right of recovery exists under our Wrongful Death Act and Survival Statute on behalf of a stillborn child who died as a result of injuries received en ventre sa mere. The facts are not complicated and can be quickly summarized. Jennifer Amadio was the full-term unborn child of Joseph and Regina Amadio (Appellants), due to be delivered on September 28, 1979. On October 15, 1979, Jennifer was born stillborn at Methodist Hospital, Philadelphia, Pennsylvania. At delivery, Jennifer was a fully matured and perfectly proportioned seven pound eight ounce female. On September 22, 1981, Joseph and Regina Amadio, in their own right, and as Administrators Ad Prosequendum of the estate of Jennifer, filed a Complaint in Trespass in the Court of Common Pleas of Philadelphia County, against Mrs. Amadio’s obstetricians, Harvey M. Levin, M.D., Daniel J. Columbi, M.D., Martin Zeluck, M.D., and Wesley W. Bare, M.D. (Appellees) claiming that, as a result of their negligence, there were incurred medical expenses, burial expenses, a loss of earnings, loss of enjoyment of life, and physical pain and mental anguish. Preliminary Objections to the Complaint were filed by Appellees arguing that Appellants’ trespass action seeking recovery for injuries done to Jennifer Amadio en ventre sa mere was prohibited as a matter of law. By Opinion and Order of February 26, 1982, the Honorable Joseph P. Craig sustained the Preliminary Objections and dismissed Appellants’ wrongful death and survival action. A timely appeal to Superior Court, 324 Pa.Super. 592, 472 A.2d 242, followed and by its Per Curiam Order of February 10, 1984, Superior Court affirmed the order of the trial court. We accepted allocatur to review our prior decisions and evaluate their viability in light of the current advance of medical knowledge and in light of the majority trend in our sister states in permitting survival and wrongful death actions on behalf of stillborns injured en ventre sa mere. Prior decisions of this Court, Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981), Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966), and Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964), uniformly held that in order for a survival action to lie, there must be an independent life in being, surviving birth, which could have brought the action prior to death. Five reasons were usually cited for limiting survival and wrongful death actions to children born alive. First, the Court surmised that the real objective of such a lawsuit was to compensate the parents of the deceased child for their emotional distress, and that since parents already had the ability in their own right to institute such an action, it would only be duplication to permit parents to file a second action on behalf of the estate of the child. Second, because wrongful death actions are derivative, and since the Court refused to acknowledge that a stillborn child was an individual under the wrongful death or survival statutes, it was concluded that the Acts were not intended to provide for recovery by the estate of a stillborn child. Third, extending causes of actions to the estates of stillborn children was felt to increase problems of causation and damages. Fourth, the prior cases arose out of an era when most jurisdictions did not permit the filing of such actions. Prior to our Carroll decision in 1964, only seven jurisdictions recognized the cause of action. (See our Footnote 3). Fifth, it was reasoned that since only children born alive may take property by descent under our Intestate Laws, the Court assumed that the Legislature had already limited the creation of causes of actions to those instances where the existence or estate of a child was recognized by the laws of intestacy. Appellants urge us to abandon these prior decisions requiring survival at birth in order to maintain an action for fatal injuries caused en ventre sa mere, and to adopt the majority view that requires only that the death dealing injuries occur when the child is viable en ventre sa mere. Upon thorough review of our prior holdings, the change in the attitude of our sister states permitting these actions, and Appellants’ arguments that medical knowledge has advanced since we first formulated our position against the maintenance of those actions, we conclude that the time has arrived for us to join our twenty-eight sister states and the District of Columbia and recognize that survival and wrongful death actions lie by the estates of stillborn children for fatal injuries they received while viable children en ventre sa mere . As will be seen, the reasons formerly relied on to deny maintenance of such actions no longer are persuasive. We have, since our decision in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960), recognized that a child en ventre sa mere is a separate individual from the moment of conception, and have permitted that child to sue for injuries received during gestation when the child is born alive. Implicit in our holding in Sinkler is the acknowledgement that a child en ventre sa mere is an individual with the right to be free of prenatal injury. If a child en ventre sa mere is an individual at the time of its injury, then, a fortiori, the child is also an individual when those injuries cause its death, and it makes no difference in liability under the wrongful death and survival statutes whether the child dies of the injuries just prior to or just after birth. In short, the “live birth” or “still birth” of a child will no longer be determinative of that child’s status as an individual under our survival or wrongful death statutes. To be consistent with Sinkler and the body of medical knowledge underpinning it, we acknowledge a child en ventre sa mere to be an “individual,” “having existence as a separate creature from the moment of conception.” Sinkler, 401 Pa. at 273, 164 A.2d at 96. Henceforth, injuries received by a child while en ventre sa mere can form the basis for survival or wrongful death actions as maintained on behalf of a child born alive. Live birth can no longer be a limiting prerequisite to the maintenance of such an action. This is consistent with Mr. Justice Larsen’s dissent in Scott v. Kopp, Id., where he argues against drawing a line at the birth of a child, its viability, or some other arbitrary period of gestation, and instead concludes that the action should proceed to trial and let the orderly production of evidence by the adversaries prove or disprove causation, injury and damages in each case. As we have observed in the past, our wrongful death and survival statutes create a derivative cause of action, but those statutes are remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act, which is to provide a cause of action against one whose tortious conduct caused the death of another. By limiting the right to bring an action to those children born alive, we were giving the statute a narrow reading and thereby perpetuating the much criticized rule of the common law which made it “more profitable for the defendant to kill the plaintiff than to scratch him.” Prosser, Law of Torts, § 127 (4th Ed.1971); O’Grady v. Brown, 645 S.W.2d 904 (Missouri, 1983). By abandoning the former arbitrary “live birth” requirement, we feel a liberal construction of the wrongful death and survival statutes will be accomplished. No longer will we sanction a legal doctrine that enables a tortfeasor who causes death to escape full liability, while rendering one whose wrongdoing is less severe in its consequences answerable in a wrongful death or other negligence action merely because his victim survives birth. Hopkins v. McBane, 359 N.W.2d 862 (N.D., 1984). Our prior concern that such actions create difficulties in establishing proof, upon closer examination, must also give way. Difficulty in obtaining proof of the wrong should never bar the right to bring an action, once it is determined that a cause of action does, indeed, exist. Our caution in extending the right of suit on behalf of the estates of stillborn children may have partly had to do with our unfamiliarity with the problems that this type of litigation would spawn, but any such difficulties in proving damages cannot be deemed greater or different in character from difficulties attending the determination of damages in the case of an injured child who survived delivery for a few minutes, hours or days. These actions have been part of our law for some time, and we are confident that the experience gained from handling such matters has matured our bench to the point when we can now extend the application of these cases to cases where the child is born dead due to death causing injury while en ventre sa mere. This Court’s former view that the real objective of these lawsuits was to compensate the parents of their deceased children twice for the parents’ emotional distress is not only incorrect, but if accepted, merely perpetuates the notion that a child is inseparable from its mother while en ventre sa mere. That view lumped medical and funeral costs incurred due to the injury to the child as elements of damages recoverable by the mother. Once the child is recognized as a separate individual, however, medical and funeral costs incurred as well as any economic losses are recoverable by the child’s estate, not the mother. In his dissent, as in the majority opinion he authored in Scott v. Kopp, 494 Pa. 487, 431 A.2d 487 (1981), Mr. Justice Flaherty makes the same illusory argument that parents will be given the opportunity of receiving a double recovery. Clearly, this is not the result of our decision today and the dissent does not explain what this imaginary double recovery is. The fact that parents will normally be the primary beneficiaries of damages recovered for the wrongful death of their child does in no way hold them out as avaricious or seeking a double recovery. Since we recognize that the child’s wrongful death is a separate injury from that of the mother’s, the child’s wrongful death is compensable in damages and the child’s estate is the proper party to seek recovery for the decedent child’s funeral and medical expenses and pecuniary losses under the Wrongful Death Statute and for the loss of earning power less the costs of maintenance and for the decedent’s pain and suffering under the Survival Statute. The parents’ pain and suffering caused by their child’s negligent death has never been recoverable unless the pain and suffering was accompanied by or a result of a physical injury to the parent. See Scott v. Kopp, 494 Pa. at 490, 431 A.2d at 960. Vincent v. Philadelphia, 348 Pa. 290, 35 A.2d 65 (1944); D’Jorko v. Berwind-White Coal Mining Co., 231 Pa. 164, 80 A. 77 (1911). Strictly speaking, a parent’s pain and suffering for the loss of its child is recoverable only as an element of the damages suffered because of an injury sustained to the person of the parent. The parent’s injury has nothing to do with the deceased child’s independent injuries or possible pain and suffering and as such is not a recoverable element of damages by the deceased child’s estate. Today’s holding merely makes it clear that the recovery afforded the estate of a stillborn is no different than the recovery afforded the estate of a child that dies within seconds of its release from its mother’s womb. In view of the current attitude throughout our sister states to let the representatives of the stillborn’s estate prove their losses, it would be illogical to continue to deny that such claims could be established, when we permit them for the child that survives birth for an instant. Our final reason for denying the right to bring an action involved an interpretation of the intestate statutes which were construed to provide that since a stillborn could not take by distribution, no distribution scheme for damages awarded under a survival or wrongful death action existed. Carroll v. Skloff, Id. While this logic merely confused the substantive right to maintain an action with the procedure to distribute estate assets, its effect was to use the rules of descent and distribution to qualify and limit how estate assets may be accumulated for individuals. The intestacy scheme provided by the Legislature in no way limits or regulates the quality or quantity of an estate. It merely provides a scheme whereby distributions may be made for one who dies intestate. It does not regulate who may leave a distributable estate, only who may share in it and, accordingly, we find no difficulty in concluding that since a child en ventre sa mere is an individual, a stillborn’s estate which recovers for injuries under the wrongful death or survival statutes would distribute these assets by the rules of intestate succession (20 Pa.C.S. § 2101, et seq.). In summary, today we reverse our prior holdings in Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964), and extend to the estate of a child born dead the right to institute a survival and wrongful death action for death-dealing injuries suffered while en ventre sa mere. We do not decide the criminal liability, if any, attendant upon causing the death of a child en ventre sa mere, for such is not the case before us today. We reverse Superior Court’s Order affirming the trial court’s sustaining of Appellees’ Preliminary Objections, and remand this case to the trial court for further proceedings. McDERMOTT, J., and ZAPPALA, J., joined the Majority Opinion. ZAPPALA, J., filed a concurring opinion in which McDERMOTT, J., joined. NIX, C.J., filed a dissenting opinion in which HUTCHINSON, J., joined. FLAHERTY, J., filed a dissenting opinion. HUTCHINSON, J., filed" a dissenting opinion in which NIX, C.J., joined. . The Wrongful Death Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 8301(a), currently provides: § 8301 Death Action. (a) General Rule — An action may be brought to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime. . The Survival Statute, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 8302, currently provides: § 8302 Survival Action. All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or the defendant, or the death of one or more joint plaintiffs or defendants. . As already noted, our former holdings denying the right to maintain survival and wrongful death actions arose at a time when most states similarly denied such claims. That trend among our sister states has long ago changed in favor of permitting actions for injuries incurred during gestation. Today, we join the following twenty-nine other jurisdictions that hold that actions lie by the estate of stillborn children for wrongful death incurred while they were en ventre sa mere. Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974); Hatala v. Markiewicz, 26 Conn.Supp. 358, 224 A.2d 406 (1966); Worgan v. Greggo and Ferrara, Inc., 128 A.2d 557 (Del.Super.1956); Simmons v. Howard University, 323 F.Supp. 529 (D.D.C.1971); Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1972); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955); Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975); O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959); Evans v. Olson, 550 P.2d 924 (Okl.1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971); Kwaterski v. State Farm Mutual Auto Insurance Company, 34 Wis.2d 14, 148 N.W.2d 107 (1967); Wascom v. American Indemnity Corporation, 383 So.2d 1037 (La.App. 1980); Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826 (1980); Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980); O’Grady v. Brown, 654 S.W.2d 904 (Missouri 1983); Hopkins v. McBane, 359 N.W.2d 862 (N.D.1984).

OPINION OF THE COURT ROWLEY, Judge: In May, 1988, appellee Mahlon W. Drumgoole was convicted in a non-jury trial of robbery, aggravated assault and criminal conspiracy. During the robbery, which was committed on November 19, 1982, the sixty-one year old victim was shot by appellee’s accomplice. At the subsequent sentence hearing, the Commonwealth requested that appellee be given a minimum sentence for robbery within the mitigated minimum range provided by the Pennsylvania Sentencing Guidelines. The mitigated minimum range provided by the Guidelines is thirty-nine (39) to sixty (60) months imprisonment. The trial court, however, imposed a five (5) year term of probation on the robbery charge and a concurrent sentence, on the aggravated assault charge, of “Time in to twenty-three (23) months”. The “Time in”, according to the trial court, was approximately two (2) months at the time of sentence. No sentence was imposed on the charge of conspiracy. The Commonwealth filed a petition for reconsideration of sentence. The trial court vacated the sentence originally imposed but after further consideration reimposed the same sentence. The Commonwealth has filed this appeal claiming that the trial court, in imposing sentence, abused its discretion by unreasonably deviating from the Sentencing Guidelines. Since we agree, the judgment of sentence is vacated and the case remanded for resentencing. Initially, it is important to consider whether the Commonwealth’s appeal is properly before us. The Commonwealth claims that the appeal is taken pursuant to 42 Pa.C.S.A. § 742 and 42 Pa.C.S.A. § 9781(b). Section 742, however, does not grant a right of appeal to any party but merely provides for the exclusive appellate jurisdiction of this Court from final orders when a right of appeal exists. Section 9781, however, is part of the “Sentencing Code” and extends to the Commonwealth the right to appeal the discretionary aspects of a sentence imposed for a felony or a misdemeanor. Section 9781(b) further provides, however, that an appeal of the discretionary aspects of a sentence is to be taken by filing a petition for allowance of appeal with the appropriate appellate court. The subsection goes on to provide that “[ajllowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” The Commonwealth has not filed a petition for allowance of appeal and this Court, prior to argument, had not determined that an appeal should be granted to the Commonwealth. However, the Supreme Court of Pennsylvania by amendment to the Note following Pa.R.A.P. 902 provided: Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) provides that the defendant or the Commonwealth may file a ‘petition for allowance of appeal’ of the discretionary aspects of a sentence for a felony or a misdemeanor. The notice of appeal under this chapter (see Rule 904 (content of the notice of appeal)) operates as the ‘petition for allowance of appeal’ under the Sentencing Code. It automatically raises all possible questions under 42 Pa. C.S. § 9781 and is available and appropriate even where no issue relating to guilt or the legality of the sentence (in the sense that the sentence falls outside of the range of discretion vested by law in the sentencing court) is presented. No additional wording is required or appropriate in the notice of appeal. In effect the filing of the ‘petition for allowance of appeal’ contemplated by the statute is deferred by these rules until the briefing stage, where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner. At the same time, the Supreme Court amended the Note accompanying Pa.R.A.P. 341. As that Note now provides, in part: Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) states that the defendant or the Commonwealth may ‘petition for allowance of appeal’ of the discretionary aspects of a sentence for a felony or a misdemeanor. The practice under these rules is to file a notice of appeal. See Note to Rule 902 (manner of taking appeal). If the defendant has a right to an appeal with respect to the discretionary aspects of a sentence, the appellate court must, of course, entertain the appeal. Otherwise such an appeal may be entertained by an appellate court if, but only if, it appears to the court that there is a substantial question that the sentence imposed is not appropriate under the applicable guidelines. Thus, although the Commonwealth, in seeking to appeal from the discretionary aspects of a sentence, may initiate such an appeal by merely filing a notice as required by Pa.R.A.P. 902, the appellate court, before proceeding to the merits of the issue raised by the appeal, must determine whether or not there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines. Our review of the record convinces us that a substantial question exists in this case and, therefore, the Commonwealth’s appeal will be allowed. The legislature has provided that the appellate court, in reviewing the discretionary aspects of a sentence on appeal, shall affirm the trial court’s sentence unless it finds: (1) that the guidelines were erroneously applied; (2) that the sentence, even though within the guidelines, is “clearly unreasonable”; or (3) that the sentence, if outside the guidelines, “is unreasonable.” In any one of these three circumstances, we are required to vacate the trial court’s sentence and remand the case with instructions. 42 Pa.C. S.A. § 9781(c). In determining whether a particular sentence is “clearly unreasonable” or “unreasonable”, the appellate court must consider the defendant’s background and characteristics as well as the particular circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the pre-sentence investigation report, if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the “findings” upon which the trial court based its sentence. After reviewing the record in this case, we find that the guidelines were erroneously applied and that the trial court’s “findings” do not warrant the sentence imposed. On the charge of robbery, the trial court calculated the offense gravity score as nine (9) and the prior record score as zero (0). The minimum sentence range under those circumstances is thirty-six (36) to sixty (60) months imprisonment. The guidelines further provide that when a deadly weapon is used, either by the defendant or an accomplice, in the commission of the offense under consideration, an additional twelve (12) to twenty-four (24) months confinement “shall be added ” to the sentence prescribed in the guidelines. 204 Pa.Code §§ 303.2(5) and 303.4 (deadly weapon enhancement). Inclusion of the deadly weapon enhancement provision evidences the Sentencing Commission’s and the Legislature’s recognition of the potential for violence and serious personal injury or death in such situations. Therefore, the minimum range of the applicable guideline sentence in this case is forty-eight (48) to eighty-four (84) months. This, then, was the starting point for the trial court in calculating an appropriate sentence under the applicable guidelines. In completing the sentence form and considering the guidelines, the trial court, however, determined that the deadly weapon enhancement provisions of the guidelines were not applicable. This was error. The sentencing court has not been given discretion .to determine whether or not consideration should be given to the fact that a deadly weapon was used in calculating the guideline sentence ranges. Although the trial court is vested with the right, in the proper exercise of its discretion, to sentence outside the guidelines, it is imperative that before making that determination the correct starting point in the guidelines be determined. Since that was not done in this case, it is necessary that the sentence be reconsidered. In addition we find that the sentence imposed is “unreasonable” and that the trial court’s “findings” do not warrant going outside the guidelines on the basis of the record before us. The court is required, when imposing a sentence outside the guidelines, to provide a statement of the reason or reasons for the deviation. However, the reasons expressed by the sentencing court in this case are not adequate to support the sentence of probation, given that the most lenient guideline sentence applicable would require at least thirty-nine (39) months imprisonment. On the sentencing form, the trial court listed as its reasons for deviating from the guidelines: “(1) lack of prior record; (2) solid support at home; (3) prior community activity; and (4) not actual shooter” The trial court’s first reason for deviating from the guidelines is that the appellee lacked a prior record. However, the pre-sentence report, as well as the mental health evaluation, show that appellee has a prior conviction as an adult for harassment. Thus, the court erred in declaring that the defendant had “no ” prior record. Moreover, the guidelines inherently give credit to those who have led a relatively law-abiding life. An accused’s prior record, or lack thereof, is one of the two elements utilized in determining the guideline sentence ranges. The guideline sentence as computed in this case is based on a prior record score of zero (0). Thus, to assign the lack of, or even a minimal, prior record as a reason for deviating from the guidelines is to, in effect, give an accused credit for the same factor twice. Such an evaluation is error. In addition, the basis for the trial court’s conclusion that the appellee’s “prior community activity” warranted the deviation from the guidelines is not clear. The trial court made no findings and made no specific comments about appellee’s activities. The record shows that a friend of appellee stated that once, when he was twelve years old, he lived with appellee’s family and appellee helped him stay out of trouble. The defendant and his mother testified similarly, in conclusory terms. However, the record is not clear as to the nature or duration of such help or involvement by the appellee. In the absence of specific findings by the trial court regarding appellee’s “community involvement,” we cannot say that the deviation, for that reason, is reasonable. Finally, the trial court stated that the appellee was not the actual shooter. However, the record, viewed in the light most favorable to the Commonwealth, discloses that the appellee, when told by his accomplice that he was going to “pull a stickup”, handed him a handgun which was used within minutes to shoot the victim of the robbery. The record also shows that at the time appellee gave him the gun, the accomplice appeared to be “high”. There is a distinction between a conspirator who is surprised when his accomplice uses a firearm of which the conspirator had no prior knowledge, and a conspirator who furnishes the firearm with which the offense is committed. The fact that appellee’s accomplice, rather than he, actually pulled the trigger makes very little difference under the facts of this case and does not warrant the extreme deviation from the guidelines that was adopted. Therefore, we conclude that the order of probation, which is outside the Sentencing Guidelines, is unreasonable on the basis of the record before us. Consequently, the record must be remanded for resentencing. In resentencing appellee, the trial court must take into account the dangerous weapon provision of the guidelines, appellee’s prior record, and the fact that appellee furnished the gun with full knowledge that it was to be used in a robbery. The court should also make findings regarding appellee’s alleged “community involvement.” Judgment of sentence vacated and case remanded to the sentencing court for resentencing. Jurisdiction is relinquished. . The trial court did not complete the sentence form for, or make reference to, the calculation of a guideline sentence for the charge of aggravated assault. Nevertheless, it is clear that the sentence imposed is also outside the guideline range on that charge. . Appellee also suggests that to grant the relief sought by the Commonwealth "would appear to be a violation of the Fifth Amendment Constitutional guarantee against double jeopardy.” This argument has been resolved contrary to appellee's claim. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), Commonwealth v. Love, 295 Pa.Super. 276, 441 A.2d 1230 (1982) (Hoffman, J., Concurring, joined by Cirillo, J.). Also see Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982).

Opinion by Mr. Justice Walling, On the afternoon of March 1,1920, there was a shooting affair in Moff’s saloon at Girardville, Schuylkill County, in which, among others, Mike Barilla, the bartender, and one Frank Máchese participated, the former being wounded and the latter killed. Mickie Bronzo, the deceased, was present as a friend of Máchese, but just what part he took in the shooting does not appear. Busario Micuso, the defendant, was also present as the friend and cousin of Barilla, but it is not shown that he did any shooting in the saloon. Bronzo immediately left the place and ran down the street, followed by the defendant, who came up with a revolver and shot him in the back, and, according to the Commonwealth’s evidence, fired at him again after he had fallen. The defendant, on his way back to the saloon, fired two random shots at Edward Krick, a friend of Bronzo’s, as he was going from the place. Bronzo died in six days, and defendant’s trial for his murder resulted in a conviction of voluntary manslaughter, and, from sentence thereon, he brings this appeal. Defendant contends that, his cousin having been fatally shot as then supposed, he pursued Bronzo to arrest him as a participant therein, and fired only one shot and that at his legs, when the deceased unfortunately tripped' and fell just in time to receive the bullet in his back. That a private citizen may arrest for a felony is undoubted, but neither he nor an officer may shoot the felon, either to kill or wound, unless it is necessary to prevent his escape. “To excuse the taking of life in making an arrest it must appear that the killing was necessary to effect the object, and that the arrest could not have been made without it; or that the officer reasonably believed, and had grounds to believe, that it was necessary to effect his purpose. Even a felon cannot be killed in an effort to arrest him, without criminal responsibility, unless he cannot otherwise be captured”: Wharton on Homicide (3d ed.) 746, section 498; 3 Cyc. 891; Brooks v. Com., 61 Pa. 352; Goodman v. Condo, 12 Pa. Superior Ct. 456. Here the defense fails, for the defendant was gaining rapidly upon Bronzo and could have caught him in a moment. It was daylight, the deceased was a resident there, was unarmed at the time, and defendant made no request upon any of the bystanders to assist in making the arrest. Furthermore, the defendants conduct was inconsistent with such contention; for he did not arrest Bronzo, nor at first admit shooting him, but hid the revolver and denied he had been out of the saloon after the shooting therein and not until two months thereafter did he set up the claim that he was attempting to arrest the deceased. ^ Under the indictment for murder there could be no conviction of involuntary manslaughter and the trial judge was not required to give the jury a definition of that grade of homicide. In fact no request was made for such instruction, and, in any event, a judge is not required to charge upon questions not involved in the case: Com. v. Bednorciki, 264 Pa. 124; Brown v. Com., 76 Pa. 319; 16 C. J. 1024. There was no evidence, not even that of defendant, which would reduce the crime to involuntary manslaughter; for when death results from unlawful violence, intended to disable but not to kill, it is a felonious homicide, although not of the highest degree. Moreover, shooting with intent to wound is a wilful, not a negligent act, and, when resulting in death, rises higher than involuntary manslaughter. The latter offense is committed “where it plainly appears that neither death nor any great bodily harm was intended, but death is accidentally caused by some unlawful act, or an act not strictly lawful in itself, but done in an unlawful manner and without due caution”: Com. v. Gable, 7 S. & R. R. 422, 427. Death caused by recklessly driving a motor vehicle, or by carelessly discharging a firearm in a populous place, are examples of involuntary manslaughter; but to intentionally run down or shoot a citizen, causing his death, is a higher offense. We have considered the degree of the crime largely upon defendant’s own testimony; it appears more serious when viewed in the light of the Commonwealth’s convincing evidence. The jury, after due deliberation, came in and handed up a written verdict of guilty of involuntary manslaughter; whereupon the trial judge informed them that under the indictment no conviction could be had for such offense, but said if they had mistakenly written “involuntary” for “voluntary” they could retire to correct it; this they did and rendered a verdict accordingly, which was properly recorded. The verdict is what is announced in open court and recorded as such; not what was written and handed to the trial judge; and, until so announced and recorded, the jury may correct any mistake inadvertently made therein, and the court may request them to retire for that purpose: Com. v. Nicely, 130 Pa. 261, 271; Wolfran v. Eyster, 7 Watts 38; see Com. v. Huston, 232 Pa. 209, s. c. 46 Pa. Superior Ct. 172. Where two join in the commission of an unjustifiable assault, which results fatally, both are guilty regardless of which one inflicts the mortal wound; hence, the trial judge did not err in charging the jury, in effect, that even if entirely satisfied the defendant did not fire the fatal shot it would still be their duty to convict of some degree of crime, if satisfied that for the purpose of committing an unlawful assault he was acting in concert with the person who fired such shot. “Where two combine to commit a felony or make an assault, and in carry ing out the common purpose another is killed, the one who enters into the combination but does not personally commit the wrongful act is equally responsible for the homicide with the one who directly causes it”: 1 McClain on Criminal Law (ed. of 1897), p. 258, sec. 291. This instruction was called for by the fact that two bullets of different calibre were found in the body of Bronzo and it was not clear whether both were fired by the defendant or one by another acting with him. The assignments of error are overruled and the judgment is affirmed.

Opinion by Mb. Justice Bell, Plaintiff, a contract carrier by motor vehicle, brought an action of assumpsit against defendant for the cost of operation plus a reasonable profit guaranteed him under a written contract dated August 30, 1987, and recovered a verdict of $16,050.13. Defendant appealed from (the judgment on the verdict which was entered following) the lower court’s refusal to enter a judgment n.o.v. or to grant a new trial. What is the proper construction of the contract; was the contract legal; was plaintiff’s evidence sufficient to establish his case? — These are the most important questions involved in this appeal. From 1200 pages of testimony we shall briefly summarize the important facts. Plaintiff was employed by defendant as a truck driver commencing in 1933. In 1936 defendant persuaded plaintiff and' other truck drivers of defendant to purchase their own trucks and become contract carriers, orally promising plaintiff (and others) that if they did so they would be given steady work and would make a profit and that their earnings would be considerably increased over those they received as ordinary truck drivers. On August 30, 1937, plaintiff and defendant entered, into the aforesaid written contract which was prepared by counsel for defendant and was subsequently filed by counsel for defendant with the Public Utility Commission of Pennsylvania. A similar contract was prepared by defendant and executed by it and 31 other truck drivers of defendant at approximately the same time. The contract was for a period of one year, renewable automatically for a further term of one year and so on from year to year unless 15 days’ written notice was given by either party of his or its intention to terminate the same. The agreement provided that the plaintiff (carrier) would furnish a truck suitable to defendant; that he would be subject to call at any time; that he would personally drive the truck (in the absence of sickness, etc.); that his truck would be available for loading and transporting defendant’s merchandise at such times and places as defendant should designate; that the transportation was to be within the State of Pennsylvania and the contract was to be subject to the laws, rules and regulations of the proper regulatory bodies. There then followed this very important provision with respect to compensation: “9. The parties mutually agree that the compensation for such service outlined above shall not be fixed but shall vary with the tonnage, mileage, loading and unloading time, number of stops, road and weather conditions. The parties hereto shall from time to time make such adjustments of the compensation as shall be mutually agreed upon by the parties. Company hereby guarantees to Carrier compensation at least equal to the full cost of operation of the typical or average operator of the same class as Carrier for similar service, plus a reasonable profit. The minimum of such charges to be paid shall be subject to review, fixing and ascertainment by any regulatory body having jurisdiction thereof.” It will be instantly noted that the compensation was not fixed but, because of the indefinite and uncertain services to be rendered by the carrier, the compensation was to vary with a number of varying factors and a cost-plus profit was guaranteed. The importance of this cost-plus clause in the construction of the contract and the Question of compensation will hereinafter more fully appear. Based upon the aforesaid contract, plaintiff, through defendant’s counsel, filed an application with the Pennsylvania Public Utility Commission for a contract carrier’s permit, which the Commission granted on November 16, 1937. On September 30, 1940, defendant, on behalf of plaintiff, filed with the Pennsylvania Public Utility Commission a schedule of minimum rates effective November 16, 1937. This schedule contained the rates based on weight and mileage on a zone basis for two types of commodities. One of the obvious purposes was to provide plaintiff with some regular compensation for his work as it was performed. The court below, in a detailed, comprehensive and very able opinion, held — and we agree — that under said contract of 1937 plaintiff was entitled to “the full cost of operation . . . plus a reasonable profit.” The conduct of both plaintiff and defendant clearly indicates that the parties believed and intended the contract of 1937 to be binding. Not only did the plaintiff so testify, but (a) in 1943 defendant brought an action against plaintiff upon the aforesaid contract of 1937 in which it averred that said contract was still in full force and effect; and (b) on February 1, 1944, defendant and plaintiff entered into a supplemental written agreement amending (in immaterial matters) “the present contract entered into between the parties hereto dated the 30th day of August 1937" and reaffirming and ratifying said contract of August 30, 1937. How then is it possible for defendant to now maintain that the parties intended to abrogate the contract of 1937 and supersede it by the rates filed with the Pennsylvania Public Utility Commission? Defendant nevertheless contends that the miriimmu maximum and only compensation legally payable to plaintiff is that which is in accord with the schedule of rates or charges filed with the Pennsylvania Public Utility Commission; and that (an agreement to pay or) the payment of a larger snm would be illegal. No authority is cited, and we have found none,- to support defendant’s contention. On the contrary, the Pennsylvania Public Utility Law throughout, and especially in Section 802 (a), 66 P. S., Section 1302, Section 809 (a), 66 P.S., Section 1309; and Section 810, 66 P.S. Section 1310, all refer to minimum rates. For example, Section 802 (a) provides: “The commission shall have the power .... to regulate contract carriers by motor vehicle .... and to that end the commission may prescribe minimum rates which are just and reasonable......” Section 809 (a) provides.: “. . . . No such contract carrier shall engage in the transportation of passengers or property, unless the minimum charges for such transportation by such carrier have been filed with the commission, or copies of all contracts reduced to writing and filed with the commission. No reduction shall be made in any charge .... No such carrier shall .... charge, or collect a less compensation for such transportation than the charges filed in accordance with this section .... or by any other device whatsoever, to charge, accept or receive less than the minimum charge so filed . . . .” Section 810 empowers the Commission upon complaint or its own motion to “prescribe minimum rates”. No authority is conferred upon the Commission to fix maximum, or maximum and minimum rates of a contract carrier. It follows, therefore, that an agreement of a contract carrier which provides for minimum and maximum rates (cost plus reasonable profit) is not a violation of the Pennsylvania Public Utility Law, especially since in no event could the rates charged by the contract carrier fall below the schedule of minimum rates filed with the Commission. The purpose of prescribing minimum rates for contract carriers by the Pennsylvania Public Utility Commission g was to protect common carriers from cutthroat competition and price-cutting on the part of the contract carriers, as well as to protect the contract carriers from cut-throat competition and price-cutting among themselves. It was felt, and properly so, that such price-cutting or the . charging of an unreasonably low minimum rate would likely result in the deterioration of equipment and the increase of hazards to the public. This case was further complicated by the fact that plaintiff claimed for the cost of operation plus reasonable profit for merchandise transported by him outside of Pennsylvania under the guarantee clause of the aforesaid contract of 1937. Defendant prepared and filed with the Interstate Commerce Commission an application for a license for plaintiff, together with an accompanying contract made between defendant and plaintiff dated December 4, 1939. Defendant in this contract guaranteed plaintiff 500,000 pounds of merchandise for transportation during the year. The contract also provided that the compensation for the transportation of such merchandise should be 2‡ per ton mile and further provided that “Nothing in this agreement shall prevent the Company from paying the Carrier reasonable additional compensation based upon and varying with the type of service, the flow of tonnage and territory involved and served.” Defendant contends that the agreement of 1939 was intended to apply to all transportation outside of Pennsylvania and that the plaintiff could legally recover only 2‡ per ton mile. The court below held, and we believe correctly so, that the contract and the schedule of rates and charges filed with the Public Utility Commission and with the Interstate Commerce Commission (1) related only to minimum rates and (2) were filed in order to comply with the requirements of each of said Commissions. But the court also found, as did the jury under proper instructions, that the plaintiff and defendant intended the plaintiff to be compensated for both intra-state and inter-state transportation in accordance with the terms of the guarantee set forth in the aforesaid contract of 1937. A written agreement may be modified, of course, by a subsequent oral agreement and this modification may be shown by words or conduct, or both. Knight v. Gulf Refining Company, 311 Pa. 357, 361, 166 A. 880. “It is an elementary proposition that any contract can be modified with the assent of both contracting parties, provided, of course, the modification does not conflict with law or public policy.” Friday v. Regent Improvement Co., 330 Pa. 481, 485, 199 A. 914. Of course, the subsequent modification must be clearly established. Stoner v. Sley System Garages, 353 Pa. 532, 534, 46 A. 2d 172. There was sufficient evidence on the question of modification to take the case to the jury. In the first place, the plaintiff and his witnesses testified that it was the intention of the parties, and that they had agreed, that contract carriers would be compensated for both intra-state and inter-state. transportation as provided by the 1937 agreement; in the second place the acts and conduct of the defendant corroborated this understanding. For example, the defendant never paid the plaintiff 2‡ per ton mile as fixed by the said contract of 1939. On the contrary, the uncontradicted evidence showed that all transportation outside of Pennsylvania was paid for by defendant under the zone rate schedules filed with the Public Utility Com mission under the contract of 1937. Furthermore, the 7%% overall increases and minimum load guarantees agreed upon by plaintiff and defendant in 1946 were applied by both parties equally to intrastate and interstate transportation. Perhaps most convincing of all, defendant in the detailed record which it kept of plaintiff’s transportation services, expenses, etc., did not segregate the intra-state and the inter-state hauls or the expenses or payments due under each. It seems too clear for argument that if defendant believed plaintiff was entitled to a specific compensation for transportation services within Pennsylvania and to a different compensation for transportation services in inter-state commerce, it would have Icept a separate record of and paid plaintiff a different compensation for each of said services. It is also clear that the agreement of 1939 was intended not only to provide for a minimum compensation but also for additional compensation for plaintiff. Moreover, as we have seen, defendant in 1943 sued on the contract of 1937 which it said was then still in effect and binding upon the parties; and in 1944 defendant executed an amendment to the 1937 contract. The jury found from adequate evidence and under proper instructions, that the parties intended that the plaintiff was entitled to the cost of operation plus a reasonable profit for both intra-state and interstate transportation. Defendant makes the same legal contention with respect to the rates filed with the Interstate Commerce Commission that it made with respect to those filed with the Pennsylvania Public Utility Commission, namely, that they were the only charges or rates which could legally he collected. Regardless of any technical violation by plaintiff of the Interstate Commerce Act the present suit of the plaintiff does not violate the public policy expressed by said Act since plaintiff is making no attempt to collect less than the minimum rates on file with the Commission, but rather to collect the additional compensation guaranteed by his 1937 contract with this defendant and impliedly referred to in their 1939 contract. The Interstate Commerce Commission is concerned with minimum rates for contract carriers. Throughout the Interstate Commerce Act every contract carrier by motor vehicle must “establish and observe reasonable minimum rates and charges”; he must file with the Commission “schedules containing the minimum rates or charges”; and throughout the provisions pertaining to contract carriers all the language refers to minimum charges. The Commission itself recognized in its decisions that it was concerned solely with mimmum charges, and prohibiting the payments or acceptance of payments below the minimum rates fixed in the schedules filed: see Ex Parte No. MC-9, 2 M. C. C. 55. In this opinion, the Commission said: “No need exists as to such carriers for protecting the public against exorbitant charges because the contracting shippers are well able to protect their own interest in this respect. The patent object of Congress is to protect common carriers against cut-throat competition”: Ex Parte No. MC 12, 2 M. C. C. 628, 629. Bottemueller v. Wilson & Co., 57 Fed. Supp. 766 and Gardner v. Rich Manufacturing Company, 158 Pac. 2d. 23, cited by defendant, are clearly distinguishable. Each of them involved a situation where the contract carrier accepted payments below the minimum rates fixed in the schedule filed with the Interstate Commerce Commission. The following excerpt from the opinion in the Bottemueller case is illuminating (p. 768) : “It wag the hauling service that he performed for the defendant and not the statute which gave him the right to claim compensation. All the statute did was to regulate and fix the amount of compensation to be charged and to forbid the plaintiff from collecting a lesser amount.” That brings us to the next question: was the evidence to prove plaintiff’s case sufficient? Plaintiff claims that he is entitled under the contract of 19S1 to a “compensation at least equal to the full cost of operation of the typical or average operator of the same class as carrier for similar service plus a reasonable profit.” We have already decided that this is the correct construction of said contract. However, the parties vigorously disagree as to what is meant by the “full cost of operation”; what is a “typical or average operator”; “of the same class as carrier”; and what is meant by the words “similar service”; and “a reasonable profit.” It becomes necessary, therefore, to determine what is meant by this controversial clause and whether plaintiff’s evidence was adequate. We must remember that plaintiff was a truck driver without a lawyer, and the contract was prepared by defendant’s able, experienced lawyer. If, therefore, the contract, or any part of it, is susceptible of two reasonable constructions, “It is an elementary proposition that a written contract should, in case of doubt, be interpreted against the party who has drawn it; 6 R. C. L. page 854, Sec. 242; White vs. Smith, 33 Pa. 186.” Hempfield Township School District vs. Cavalier, 309 Pa. 460, 463, 164 A. 602. “ ‘The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles.’ [citing cases] ‘Con tracts must receive a reasonable interpretation, according to the intention of the parties. ... if that intention can be ascertained from their language.’ ” Brown vs. Raub, 357 Pa. 271, 287, 54 A. 2d. 35. “ ‘. . . . in order to ascertain that intention, the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement Slonaker v. P. G. Publishing Co., 338 Pa. 292, 296, 13 A. 2d. 48, 50, 51.” Hindman v. Farren, 353 Pa. 33, 35, 44 A. 2d. 241. How do these principles apply to the facts which were proved in this case? The jury could have found from the evidence, and the contract itself discloses, that the conditions sought to be covered by the contract were so unusual, indefinite, varying, uncertain and unforeseeable; the subject matters involved such as the different kinds, nature and weight of commodities and merchandise; the services to be performed at call; the unknown destinations and uncertain times of performance; and all the surrounding facts and circumstances necessarily made it impracticable and probably impossible to clearly and with particularity specify in the agreement any detailed method of ascertaining the compensation. The contract itself in effect said that the compensation could not be fixed in advance because of so many uncertain and unknown factors. Plaintiff offered evidence to prove the actual cost of operations on a yearly basis of half a dozen contract carriers, who, according to the evidence were typical or average and in the same class and rendered similar service as plaintiff, in that they all hauled about the same load irrespective of the size or weight of their trucks, and they all did approximately the same transportation work; and then the plaintiff struck an aver age cost of operations therefrom. Defendant alleges that this was an incorrect method of ascertaining cost. Defendant does not allege what particular yardstick should be adopted but says that the clause in question means, if it means anything, “the full operating cost for a reasonable Unit of service rendered, such as a ton mile or a zone ton or some other reasonable unit.” In other words, defendant admits the clause is capable of any one of several constructions; but not the construction placed upon it by plaintiff. Defendant’s theories and arguments as to a reasonable interpretation of each element in this clause are, when applied to the facts and attendant circumstances, specious but impractical, unreasonable and unsound. The' court below found that the record was replete with testimony showing the impracticability, if not impossibility, of figuring out costs on any ton mile or zone ton or other unit basis. No one could reasonably expect a truck driver to keep books on any such basis. If a cost accountant had been employed by a truck driver to compute costs per ton mile or per zone ton, he would have had to qualify every figure he arrived at by explaining that this figure was a cost per ton mile for hauling certain commodities in certain loads over certain routes with the figures changing and varying with different commodities, loads, roads and weather' conditions. That would be ridiculous. On the other hand, taking as plaintiff did, the total costs of half a dozen typical carriers on a yearly or other basis and then averaging the cost would give a reasonable, practical and substantially accurate measure of the full cost of operation within the meaning and intent of paragraph 9 of the agreement of 1937. Defendant next contended that a typical or average operator was one whose truck weight was for licensing purposes the same as plaintiff’s. This theory is re futed first by tbe facts, and secondly by tbe testimony. For example, only one of tbe eighteen contract carriers serving defendant under the original agreement operated a “U” truck, and only one a “V” truck, and only one a “ZZ” truck. Under defendant’s theory these carriers could recover no guaranteed cost and profit under the contract of 1937 because there could not be a typical or average operator in their class. Moreover there was testimony that the six witnesses for plaintiff all took about the same load as plaintiff, irrespective of the weight or size of their truck; and there was likewise sufficient evidence (giving plaintiff as we must on a motion for judgment n.o.v. the benefit of every fact and every reasonable inference of fact arising therefrom and viewing the testimony in the light most advantageous to the plaintiff) to enable the jury to find that these witnesses were typical or average contract carriers of the same class as plaintiff and that they rendered similar service. Defendant also contended that the court below erred in holding (1) that the testimony of plaintiff and his witnesses as to the estimated time devoted to serving the defendant under their contracts was admissible; and (2) that plaintiff was entitled to compensation for himself in computing his cost; and (3) that the Union wage scale was' applicable and therefore admissible as an element of cost in computing plaintiff’s own allowable salary or cost; and (4) that the testimony of plaintiff’s certified public accountant was admissible; and (5) that plaintiff’s evidence was sufficient to make out a prima facie case for the jury. Defendant attacked most vigorously the admissibility of the testimony of plaintiff’s certified public ac countant who had examined and testified with respect to the costs of the aforesaid six contract carriers in the same class as plaintiff. Proof of the costs of operation and a reasonable profit in an unusual case such as this would obviously be difficult, and the problem must necessarily be approached from a practical and reasonable consideration of the situation of the parties, the nature of the subject matter of the contract and all the surrounding circumstances, as well as the objects the parties had in view. Taking into consideration all of these factors and elements, the testimony of plaintiffs certified public accountant was both admissible and adequate. See Wigmore on Evidence Third Edition, Section 1230, pages 434-437. The rule with respect to a claim for compensation for services rendered and accepted is well stated in Lach v. Fleth, 361 Pa. 340, 352, 64 A. 2d 821: “The law does not require that proof in support of claims for damages or in support of claims for compensation must conform to the standard of mathematical exactness. In Western Show Co., Inc. v. Mix, 308 Pa. 215, 162 A. 667, we held that evidence in support of a claim for damages was sufficient ‘if it afforded a reasonably fair basis’ for calculating the plaintiffs loss. The same rule applies when the claim is for compensation for services rendered and accepted. If the facts afford a reasonably fair basis for calculating how much plaintiff is entitled to such evidence cannot be regarded as legally insufficient to support a claim for compensation.” See also to the same effect, Weinglass v. Gibson, 304 Pa. 203, 155 A. 439; and Osterling v. Frick, 284 Pa. 397, 131 A. 250. We find no merit in these or in any other contentions made by defendant, all of which we have considered but deem it unnecessary to discuss. We believe that plaintiffs construction of the contract was reasonable; that the contract, was legal; that considering the extraordinary circumstances and conditions involved in this contract, plaintiff’s proof was sufficient to establish his claim; and that substantial justice was rendered in this unusual case. Judgment affirmed. Italics throughout, ours. See paragraph 8 of said agreement. Part 2, section 218, enacted August 9, 1935, O. 498, 49 Stat. 561, as amended, 49 U. S. C. A., section 318, 49 Fed. Code Ann., section 318. McDonald v. Ferrebee, 366 Pa. 543; Welch v. Sultez, 338 Pa. 583.

Opinion by Mr. Justice Stern, For an understanding of the legal questions here involved it is not necessary to give a detailed account of the accident which was the forerunner of the present litigation. Suffice it to say that the S.S. “Tercero,” coming up the Delaware River to Philadelphia, arrived abreast of the pier where it was to be docked, and a spring line was thrown out from the forecastle head and fastened to a cleat on the dock. Because of packed ice in the river the ship could not get nearer to the pier than 15 to 20 feet. ■ The “Indian,” which was one of two tugboats assisting in the docking operation, received orders from the bridge of the “Tercero” to back in between the side of the ship and the pier, in order, by the action of its propeller, to churn out the ice. While this maneuver was being executed the spring line for some reason became slack, thereby interfering with the progress of the “In dian,” and, upon an order which emanated either from the. captain of the “Indian” or from the bridge of the steamship, — the testimony on this point is not clear,— the slack was taken up by heaving the line over a metal mooring post on the pier some forty feet distant from the- cleat. Edward E. Barnes, the pier superintendent of the company to which the cargo of the “Tercero” was consigned, was standing on the dock between the spring line and the tug when, probably because of the pressure of the ice pushing the bow of the steamship away from the pier, the line suddenly became taut and, being considerably higher at the vessel than at the cleat end, whipped over the top of the mooring post, struck Barnes in the back and catapulted him onto the deck of the “Indian,” causing him severe injuries. Barnes brought an action in tort for damages against A/S Ivarans Rederi as the alleged owner, and Moore & McCormack, Inc., as the charterer of the “Tercero,” and also against Tugboat Indian Company as the alleged owner and operator of the tugboat, and Henry J. Wolfinger, the linesman whose employees took the line on the dock and placed it over the cleat. No service was obtained against A/S Ivarans Rederi. The court granted a nonsuit as to Moore & McCormack, Inc. Tugboat Indian Company also asked for a nonsuit but the motion was refused. Being apprehensive as to the amount of damages which the jury might award against it, Tugboat Indian Company thereupon settled with Barnes by paying him $2,500, taking from him a release and an assignment of his rights against the S.S. “Tercero,” its owners, underwriters and charterers. Upon the commencement of the action by Barnes, counsel for Tugboat Indian Company wrote letters to A/S Ivarans Rederi and Moore & McCormack, Inc., demanding that they undertake the defense of the suit, and again wrote to their counsel prior to effecting the settlement with Barnes, giving notice of the proposed payment and expressly reserving right of action by way of subrogation. Tugboat Indian Company then began the present suit in assumpsit against A/S Ivarans Rederi, Moore & McCormack, Inc., and Moore & McCormack Co., Inc., to recover the sum of $2,500 paid to Barnes, together with expenses of $1,299.30 incurred in connection with the defense of the Barnes suit. A verdict was rendered by the jury in favor of plaintiff in the amount of $2,500, the item of expenses having been eliminated by the trial judge. Subsequently the court granted a motion for judgment n. o. v. Plaintiff now appeals for a restoration of the verdict. This is not a suit by one tort-feasor against another for contribution. Neither is it an action based upon Barnes’ assignment of his claim, plaintiff evidently realizing that unliquidated damages in tort cannot be assigned : Patten v. Wilson, 34 Pa. 299; Marsh v. Western New York and Pennsylvania Ry. Co., 204 Pa. 229, 231; Sensenig v. Pennsylvania R. R. Co., 229 Pa. 168; Manganiello v. Lewis, 122 Pa. Superior Ct. 435. Plaintiff framed its case upon the established doctrine that one who pays under coercion or duress the obligation of another is entitled to restitution from the real debtor. In its statement of claim it alleged that the injuries to Barnes were occasioned solely by reason of the negligence of defendants in the way in which they handled the spring line, and were not caused or contributed to by any fault on the part of plaintiff. The statement of claim further alleged that plaintiff settled with Barnes because “fearful of the result of continuing the litigation under the circumstances and realizing the possible burden upon its property and business of an adverse verdict and the costs involved in continued litigation and appeal.” Aside from other questions which suggest themselves, it is clear that the facts disclose no coercion within the meaning of the principle upon which plaintiff relies. In order to constitute duress there must be an actual or threatened seizure of a person or his property for the purpose of compelling him to pay money for which he is not liable: Hospital v. Philadelphia County, 24 Pa. 229, 231; Lehigh Coal & Navigation Co. v. Brown, 100 Pa. 338, 346; Peebles v. City of Pittsburgh, 101 Pa. 304, 308; Harvey v. Girard National Bank, 119 Pa. 212, 222; De La Cuesta v. Insurance Co. of North America, 136 Pa. 62, 78, 79; Payne v. School District, 168 Pa. 386, 392; Schoenfeld v. City of Bradford, 16 Pa. Superior Ct. 165, 169; Carhill Petroleum Co. v. Ennis-Bayard Petroleum Co., 81 Pa. Superior Ct. 486; Friedline v. Somerset Borough, 114 Pa. Superior Ct. 49, 52. Plaintiff was in no such perilous position. Had it persisted in its defense in the Barnes suit that it was in no way responsible for the accident, and had the jury rendered a verdict in its favor, it would thus have exonerated itself without the necessity of any payment or further action on its part; on the other hand, had a verdict and judgment been rendered against it, this would have established that it was in fact negligent and was therefore not entitled to the relief which it claims on the ground that defendants alone were at fault. Plaintiff did not, however, choose to abide the issue of the Barnes trial, but settled because it entertained the fear that a just verdict might not be reached, although it would have had the complete protection of judicial review, both by the trial court and on appeal, of any verdict rendered. It is significant that in the present action the jury returned a verdict in plaintiff's favor on the ground that it was not negligent; why should it have been supposed that the jury in the Barnes suit would not have come to the same conclusion? It is true that plaintiff was called upon to decide whether to take the chance of a possibly unfavorable verdict or to settle the claim, but this is a situation inherent in all jury trials, and the ne eessity of a litigant’s exercise of judgment to determine the better policy to pursue is not duress within the meaning of the law. It cannot be said that one is coerced when he has ample opportunity to have his rights litigated and can utilize all the processes of the law to protect himself against an unwarranted demand. If, instead of availing himself of such protection, he chooses to compromise the claim, a payment thus made is not compulsory and does not entitle him to a right of recovery over by way of subrogation or indemnity. The Pennsylvania cases are unanimous in denying restitution to a person who, contending that another has no valid claim against him, nevertheless makes payment solely because of the threat or the institution of litigation to enforce the demand. “The threat of a distress for rent is not . . . duress, because the party may replevy the goods distrained, and try the question of liability at law: . . . The threat bf legal process is not such duress, for the party may plead and make proof, and show that he is not liable”: Hospital v. Philadelphia County, 24 Pa. 229, 231. “One who is improperly sued for the wrong of another, must secure himself by a defense against that action, and not by subrogation to another”: Borough of West Chester v. Apple, 35 Pa. 284, 285. “They [the payments] were not made under any duress of person or goods, or under any impending danger of seizure or sale of property. No warrant or other process had been issued directing a levy upon any property, nor had any right been acquired to issue such process. Before such a right could possibly be obtained the plaintiffs were entitled to a day in court, to be heard in opposition to the claim, to have the adjudication of the regularly constituted courts of the commonwealth, including the court of last resort on writ of error. . . . A payment in such circumstances is a voluntary payment” : Peebles v. City of Pittsburgh, 101 Pa. 304, 308. “The coercion which results from a prosecution in court, in good faith, with full right of appeal, does not consti tute legal duress”: Blumenthal v. United States, 4 Fed. (2d) 808, 809. To the same effect: Ditman v. Raule, 134 Pa. 480; De La Cuesta v. Insurance Company of North America, 136 Pa. 62, 80, 663, 664; Shenango Furnace Co. v. Fairfield Township, 229 Pa. 357, 369, 370. Confronted by the weakness of its case thus indicated, plaintiff seeks refuge in an alternative theory upon which to base its cause of action, namely, that where a person is secondarily liable for damages to an injured party he may recover indemnity from one primarily responsible, and in such a case it is not a prerequisite that he should have defended an action against him to the very end. On the contrary, he may pay or settle the claim voluntarily and recover against the person from whom he is entitled to indemnity, provided he has given proper notice and can establish that the settlement was fair and reasonable: Wise Shoes, Inc., v. Blatt, 107 Pa. Superior Ct. 473, 479. To recover indemnity where there has been such a voluntary payment, however, it must appear that the party paying was himself legally liable and could have been compelled to satisfy the claim. Plaintiff, in order to take advantage of this principle, now contends that it was acting as the servant or agent of the owners and operators of the “Tercero” and under their orders, that it was liable for the injuries to Barnes, and that, therefore, it is entitled to reimbursement from defendants as its principal, in accordance with the rule that where a servant is responsible in damages for injuries to a third person caused, not by the negligent manner of performing an act, but as the result of the act itself as directed by the master, recovery over from the master may be had. Assuming, without deciding, that plaintiff was the servant of defendant, or that even if it was acting in the capacity of an independent contractor the same rule would apply, it is sufficient to point out that the pleadings and all proceedings in the case on the part of plaintiff were diametrically opposed to the contention which it now attempts to assert. In its defense to the Barnes suit, in its statement of claim and in the testimony which it presented in the present action, it alleged and sought vigorously to establish that it was not liable to Barnes, but that it was the crew of the “Tercero” who alone caused the accident by their negligence. It presented a point for charge that “there is no evidence in the case of any negligence on the part of the Tugboat Indian Company.” The learned trial judge instructed the jury that there could be a verdict for plaintiff only if the “Indian” was blameless in the matter, and the verdict of the jury therefore established that plaintiff was not culpable. It cannot now reverse its position by asserting that it was liable to Barnes, and recover over from defendants by obtaining a reinstatement of a verdict which, the way the case was tried, established exactly the contrary. Judgment affirmed. A nonsuit was entered as to this company and it is not involved in the present proceedings. The other defendant, Moore & McCormack Co., Inc., operated the “Tercero” as agent for the owner. There was a contract between Moore & McCormack Co., Inc., and P. F. Martin, Inc., whereby the latter company agreed to furnish tugs for the former’s ships, and this agreement contained the customary pilotage clause to the effect that any officer of a tug going on board a steamer to assist in ber movement or handling became the servant of the steamer and her owners in respect of all acts done ‘and all orders given by him, and that a tug should not be responsible or liable for any claims or damages caused by or resulting from such acts or orders. Effect was given to such a provision in Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291. See also Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 261 N. Y. 455, 463; Moran Towing & Transportation Co. v. Navigazione Libera Triestina, 92 Fed. (2d) 37. In the present case no officer of the “Indian” went on board the “Tercero.” The captain of the “Baltic,” which was the other tug engaged in the docking operation, did go on the bridge of the “Tercero” and from there directed all of the participants.

OPINION OF THE COURT PAPADAKOS, Justice. This is a direct appeal to us by Roland S. and Louella V. Nolf, his wife, (Appellants) pursuant to the provisions of the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, Section 2, 42 Pa.C.S. Section 722 (1980) from the final order of the Court of Common Pleas of Berks County of July 16, 1982, which held unconstitutional certain provisions of the Pennsylvania Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, Art. VI, Section 602, as amended, 72 P.S. Section 5860.602, and invalidated the tax sale of the property of Annabella D. Mosser (Mosser). Mosser holds title to some ten acres of real property in Exeter Township, Berks County. The state of the record includes judgment liens held by the Estate of Mary C. Schumo, Deceased (Appellee), and Appellants, and tax liens for the years 1976 and 1977. The Berks County Tax Claim Bureau (Bureau) notified Mosser that claims had been entered against her for nonpayment of her 1976-1977 county, municipal and school taxes, and further advised her of a one-year redemption period from December 31, 1978, during which she could pay the claim. The notice continues: “If the claim is not paid in full before the end of the redemption period the property will be advertised and sold by the Tax Claim Bureau at a judicial sale, and no further redemption will be allowed after such sale.” (R. 48a, 162a). Mosser did not redeem the property and the Bureau listed the property for sale on September 10, 1979. Advertisements appeared in a newspaper of general circulation and in the county legal journal listing the property for sale and addressing notice to: “owners of properties described in this notice: to all persons, municipalities and taxing authorities having tax liens, tax judgments or municipal claims against such properties.” (R. 49a, 53a). The property was sold at the tax sale to Appellants, and the sale was confirmed by decree nisi on October 31, 1979, On November 14, 1979, Appellee filed timely objections to the tax sale, alleging it had no notice of the sale from the Bureau and that, as to the estate, the sale was invalid. The Common Pleas Court agreed with Appellee, invalidated the tax sale by its opinion and order of July 20, 1982, and held that the Real Estate Tax Sale Law was unconstitutional insofar as it deprived judgment creditors of notice to tax sales because it deprived them of a valuable property right without due process of law. On August 20, 1982, Appellee, as a judgment lienor, had a writ of execution issued against Mosser which directed the Sheriff to sell the subject property on October 8, 1982. The trial court twice stayed the sale (October 4, 1982, October 12, 1982) to permit Appellants to intervene and to post bond as security for any loss to the Estate because of the stay. Since Appellants did not meet the conditions of the stay order, the property was sold by the Sheriff on November 5, 1982, to the Estate. After the sale, Appellants attempted to have the Sheriffs deed impounded and claimed entitlement to the proceeds of the sale. These claims were dismissed by the trial court on November 10, 1982. An appeal was taken to Superior Court on November 23, 1982, then transferred to us by our order of January 12, 1983, which consolidated these cases. The central issue before us is the constitutionality of the Real Estate Tax Law, Act of July 7, 1947, P.L. 1368, No. 542, as amended, 72 P.S. Section 5860.101 et seq., which does not require either personal service or notice by mail to judgment creditors of impending tax sales. The Due Process Clause of the Fourteenth Amendment to the Federal Constitution requires at a minimum that the deprivation of life, liberty or property by adjudication must be preceded by notice and opportunity for hearing appropriate to the nature of the case. The United States Supreme Court beginning with Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950), has invoked the Due Process Clause and required states to make efforts to provide actual notice to all parties whose interests are affected by proceedings before a tribunal. In the recent case of Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the United States Supreme Court ruled that a mortgagee possessed a substantial property interest that would be significantly affected by a tax sale and that the mortgagee was entitled to actual notice of the sale. We followed the Mennonite decision in First Pennsylvania Bank, N.A. v. Lancaster Tax Claim Bureau, 504 Pa. 179, 470 A.2d 938 (1983), ruling that the notice provisions of the statute under review here were unconstitutional as applied to mortgagees. We must now decide whether judgment creditors are also entitled to personal or general notice by the Bureau as a matter of due process of law. Judgment liens are a product of centuries of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary’s Office. When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county. 42 Pa.C.S. Sections 4303(a)(b), 1722(b) and 2737(3). The judgment lien represents security for the underlying debt, Commonwealth v. Meyer, 169 Superior Ct. 40, 82 A.2d 298 (1951), and conveys a right of execution to the judgment creditor in satisfaction of his debt. The judgment not only affects all real property owned by the debtor, but extends to his equitable interests, Auwerter v. Mathiot, 9 Serg. and R. 397 (1823) and beneficial interests as well Davis v. Commonwealth Trust Company, 335 Pa. 387, 7 A.2d 3 (1939). The existence of a judgment lien prevents a debtor from encumbering or conveying any property he might own in such a way as to divest the effect of the judgment, while also preventing later lienholders from satisfying their debt without first paying the earlier lien. The judgment lien thus constitutes a liquidated claim, Educational Society v. W.D. Gordon, 310 Pa. 470, 166 A. 499 (1933), which has value to the judgment creditor. The judgment can be assigned, pledged, or used as collateral and is a valuable form of property. We have already decided that a judgment is property and that a judgment creditor’s interest cannot be deprived without due process of law. Pennsylvania Company v. Scott, 346 Pa. 13, 29 A.2d 328 (1942). Appellant argues, however, that the judgment creditor has no property right jeopardized by a tax sale, and that no notice is due to him. We disagree. It is true that a judgment lien is called a general lien — unlike a mortgage which is a specific lien against a particular piece of real property. Such has been the recognized law in this Commonwealth for some time. Ruth’s Appeal, 54 Pa. 173 (1867). Our law recognizes that a judgment is a hold on all the debtor’s real estate without discrimination, but our courts have consistently concluded that the judgment creditor is not interested in the property as property, but only in the lien. As was said in Cover v. Black, 1 Barr 493 (1845): “The judgment creditor has neither jus in re nor ad rem as regards the (debtor’s) property. He has a lien, and the law gives a right to satisfaction out of the property, and that is all.” Grevermeyer v. Southern Mutual Insurance Company, 62 Pa. 340 (1869). While judgment-creditors have neither estate nor right in the lands of their debtor, it has never been the law that they do not have any protectable property interest. Witmer Appeal, 45 Pa. 455 (1863). Quite to the contrary, the judgment itself is property which may be defended by forced judicial sale of the debtor’s land. It is quite properly said that judgment creditors are interested in the property of the debtor only because they have a right to seize it, sell it, and satisfy the debt from the proceeds of the sale. It is this very right of execution which gives a judgment lien its effectiveness and great value. Any judicial proceeding which impairs or diminishes the value and reach of the judgment certainly affects its holder adversely. Such is the case before us. In addition, we note that it is important to separate concepts of secured and unsecured creditors on the one hand from the concepts of general and specific security interests or liens on the other. As we read Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), due process requires protection of liens because they are property interests. It does not distinguish between general and specific liens. Mortgages are liens — and hence property interests — on specific assets. A judgment is also a lien — and hence a property interest— covering all real property of the debtor against whom it is entered. Judgments are no less property interests because they are general security interests, attaching to all of a debtor’s real property within the territorial jurisdiction of the court among whose records they are filed, rather than to a specific parcel. They are therefore no less entitled to the due process protections set forth in Mennonite Board, supra, and First Pennsylvania Bank, N.A. v. Lancaster County Tax Claims Bureau, 504 Pa. 179, 470 A.2d 938 (1983). The statute under review gives lien holders the right to redeem property for the benefit of the owner, before a tax sale, 72 P.S. Section 5860.501, and permits lien holders to file objections to a tax sale within 60 days after the court confirms the sale by its nisi decree, 72 P.S. Section 5860.-607. Furthermore, where no objection to the tax sale is timely made the sale operates to divest all liens against the property, except mortgages recorded prior to the tax liens. 72 P.S. 5860.609. But how are lienholders to exercise their statutory rights, redeem the property, or timely object to the tax sale when they are not given notice? The general notice provided in this statute is inadequate to meet the requirements of due process as far as judgment creditors are concerned. Notice directed only to the owner and taxing bodies, as required by the statute, does not advise judgment creditors any more than it does mortgag ees, that their interests may be affected by the tax sale. It is argued that general notice is notice to all the world, including judgment creditors, that a piece of real estate is being sold at a tax sale and that all interested parties can participate. Such notice, however, advises the general public only that a piece of real estate is to be sold. It does not inform individuals who have property interests that their interests may be affected by the tax sale. Such individuals are entitled to more than a “squib” in a local newspaper or county law journal buried between the automobile sales and want ads. The general public will neither lose nor gain anything by virtue of a tax sale, but judgment creditors are likely to lose the security of their debts and hence their property. Upon review we conclude that the l^ck of sufficient notice could have impaired the value of Appellee’s judgment because without notice, Appellee would have no real opportunity to redeem the property, (72 P.S. Section 5860.501), bid at the tax sale, or assert any defects to the sale. Most importantly, the tax sale immediately and drastically diminished the value of Appellee’s judgment by granting the purchaser title free of all liens. 72 P.S. Section 5860.609. In effect, Appellee’s security for its legal debt was nullified without opportunity to be heard because notice was not forthcoming. Further, Appellee cannot even look to the proceeds of the tax sale to satisfy its debt, as occurs in execution sales, because only taxing bodies share in the distribution of the sale proceeds. We hold, therefore, that tax sales are proceedings which may deprive judgment creditors of property rights, and hence, notice and hearing must measure up to the standards of due process. When the judgment creditor is identified in a judgment that is publicly recorded, constructive notice by publication must be given and supplemented by notice mailed to the judgment creditor’s last known available address, or by personal service as is the case for mortgagees. First Pennsylvania Bank N.A., 504 Pa. at 181, 470 A.2d at 939. Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. Mennonite, 462 U.S. at 800-801, 103 S.Ct. at 2712. Contrary to Appellants’ arguments, a notice requirement would not unduly burden the Bureau. The Bureau can easily run a judgment search against its tax delinquents, ascertain the names and addresses of judgment creditors, and provide them personal notice of the tax sale, by mail, and assess any costs for the search out of the costs of the tax sale. Such notice is information which the County is constitutionally obliged to give judgment creditors as interested parties to tax sales. Accordingly, under Mullane, Mennonite Board, and First Pennsylvania Bank N.A., the notice provision in Pennsylvania’s Real Estate Tax Sale Law violates the due process rights of judgment creditors. The trial court was, therefore, correct in setting aside the tax sale of September 10, 1979. Appellants also argue that the trial court erred in refusing to stay Appellee’s sheriff sale of the subject property, (November 5, 1982) impound the sheriff’s deed after the sale, permit Appellants to share in the proceeds of the sale, and preserve the status quo between the parties during this appeal. We have carefully reviewed the record in this matter and find appellant’s arguments meritless. The grant of a stay of execution is within the sound discretion of the trial court and its decision will not be disturbed absent a clear abuse of that discretion. Pa.R. C.P. 3121(b). See Pennsylvania Company, et al. v. Scott, et al., 329 Pa. 534 at 549, 198 A. 115 at 122 (1938); Augustine v. Augustine, 291 Pa. 15 at 18, 139 A. 585 at 586 (1927); Patterson v. Patterson, 27 Pa. 40 (1856). The trial court’s October 10, 1982, order gave Appellants the opportunity to stay the sale subject to their posting security to protect Appellee’s interests. Appellants were present when the order was orally delivered by the trial court, and knew its precise terms. When they chose not to post the security, they forfeited any rights to the. stay or to complain that the sale proceeded. Additionally, since Appellants did not proceed according to Pa.R.C.P. 3132 they were not entitled to have the Sheriffs deed impounded. As to Appellants’ claim of entitlement to distribution of the proceeds of the sheriff’s sale, their right is subordinate to payment of the costs and tax liens. The sheriff properly distributed the proceeds of the sale first towards satisfying the costs. Since the costs exceeded the bid, nothing remained for Appellants to claim and their request was properly dismissed. Finally, Appellants argue that the trial court should have directed the Prothonotary to note that the tax sale operated as a “lis pendens” against the subject property. The tax sale itself was a sufficient notice of lis pendens against the property, (See 42 Pa.C.S. Section 4302(a)), as is the existence of Appellants’ judgments and the tax claims on record in the Prothonotary’s office. Since we find no abuse of discretion or error in the actions of the trial court, we will affirm same. It is so ordered. ZAPPALA, J., filed a Dissenting Opinion in which McDermott, j., joined. . The Nolfs appealed that order to Commonwealth Court Re: Upset Sale, Tax Claim Bureau of Berks County, — Pa. Commonwealth Court — (1982) No. 1882 C.D. 1982 which Court transferred the appeal to us because a constitutional question was involved. . The notice provisions in effect at the time of the tax sale were governed by Section 5860.602 of the Real Estate Tax Sale Law. 72 P.S. Section 5860.602 as amended by the act of September 27, 1973, P.L. 268, No. 74, Section 6 and provided as follows: Notice of Sale Prior to any scheduled sale the bureau shall give notice thereof, once a week for three (3) consecutive weeks in two (2) newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. Such notice shall set forth (a) the purposes of such sale, (b) the time for such sale, (c) the place of such sale, (d) the terms of the sale including the approximate upset price, (e) the descriptions of the properties to be sold as stated in the claims entered, each description commencing with Name of Owner description Where the owner is unknown and has been unknown for a period of not less than ten years, the name of the owner need not be included in such description. The description may be given in intelligible abbreviations. Such published notice shall be addressed to the "owners of properties described in this notice and to all persons having tax liens, tax judgments or municipal claims against such properties. In addition to such publications, similar notice of the sale shall also be given by the bureau, at least ten (10) days before the date of the sale, by United States Certified mail personal addressee only, return receipt requested, postage prepaid, to each owner as defined by this act and by posting on the property. The published notice, the mail notice and the posted notice shall each state that the sale of any property may, at the option of the bureau, be stayed if the owner thereof or any lien creditor of the owner on or before the date of the sale enters into an agreement with the bureau to pay the taxes in installments in the manner provided by this act, and the agreement entered into. No sale shall be defeated and no title to property sold shall be invalidated because of proof that mail notice as herein required was not received by the owner, provided such notice was given as prescribed by this section. . 5860.501 Redemption of property from effects of tax claims (a) Any owner, his heirs or legal representatives, or any lien creditor, his heirs, assigns or legal representative, or other person interested, if such other person has a duly executed power of attorney from the owner, his heirs or assigns or legal representative or any of them empowering such person to make payment may, within one (1) year after the first day of July of the year in which the claim was filed and notice given, if the notice was mailed prior to August first, or within one year from the first day of the month in which the notice was mailed, if mailed on or after August first, redeem such property for the benefit of the owner by payment to the bureau of the amount of the aforesaid claim and interest thereon, the amount of any other tax claim or tax judgment due on such property and interest thereon, and the amount of all accrued taxes which remain unpaid, the record costs, including pro rata costs of the notice or notices given in connection with the returns or claims. . Section 5860.607 Bureau’s return to court; notice; confirmation; appeal (a) It shall be the duty of the bureau, not later than (60) days after a scheduled sale was held, to make a consolidated return to the court of common pleas of the county, wherein it shall set forth, (1) a brief description of each property to sale, (2) the name of the owner in whose name it was assessed, (3) the name of the owner at the time of sale, and to whom notice by mail was given as provided by this act, (4) a reference to the record of the tax claim on which the sale was held, (5) the time when and the newspapers in which the advertisement for sale was made, with a copy of said advertisement, (6) the time of sale, (7) the name of purchaser, if any, and (8) the price for which each property was sold, or that no bid was made equal to the upset price and the property was sold. Upon presentation of said return, if it shall appear to said court that such sale has been regularly conducted under the provisions of this act, the said return and the sales so made shall be confirmed nisi. (b) The bureau shall, at the expense of the county, within ten (10) days after confirmation nisi of the return, publish a general notice once in a newspaper of general circulation published in the county, and in the legal journal, if any, designated by rules of court for the publication of legal notices, stating (1) that the return of the bureau with respect to any such sale for taxes has been presented to the court, (2) giving the date of such presentation, and (3) that objections or exceptions thereto may be filed by any owner or lien creditor within sixty (60) days after the date of return, otherwise the return will be confirmed absolutely. . Section 5860.609 Certain liens divested by sale. Every such sale shall discharge the lien of every obligation, claim, lien or estate with which said property may have or shall become charged, or for which it may become liable, except no such sale shall discharge the lien of any ground rent or mortgage which shall have been recorded before such taxes become liens, and which is or shall be prior to all other liens, except other mortgages and ground rents. 1947, July 7, P.L. 1368, art. VI, Section 609.

Per Curiam. The fund did not bear interest in the hands of the accountant during the pendency of the report in the orphans’ court on exceptions, because it could not be paid over before final confirmation, or consequently be said to have been vexatiously detained. Besides, the case is, in other respects, like the verdict of a jury during the pendency of a motion for a new trial, on which, if .the motion be denied, there is judgment for the principal and interest previously found without regard to the intervening time', ■interest ought therefore to have been‘decreed from the final confirmation. Decree reversed as regards interest from 5th of April 1837, and interest decreed from 19th of February 1838; and affirmed for the residue.

Opinion by Mr. Justice Eagen, The Commonwealth appeals from an order below granting a new trial to Elouise Jefferson who was convicted by a jury of murder in the first degree with the punishment fixed at life imprisonment. The new trial was granted solely because the trial court concluded that prejudicial evidence was erroneously admitted at trial. The crime involved the fatal stabbing of one Marie Huggins on a public street in Valley Township, Chester County. Shortly after the incident, as a result of a phone call from headquarters, police officer Edward Hollingsworth, who was on patrol, proceeded to the hospital to investigate. In the hospital accident ward, he found several persons, including the defendant, Jefferson, who had a towel over her forehead and left eye. In answer to his inquiry and to questions of Michael Zevtchin, chief of police, who arrived a short time later, Jefferson made certain inculpatory statements without first being warned she had the right to remain silent or to have the assistance of counsel during the questioning. Testimony of these statements was admitted in evidence at trial; it may be summarized as follows: Upon entering the hospital accident ward, Hollingsworth asked: “What happened?” Jefferson replied: “There was a fight.” .... “They jumped me and I stabbed them.” Hollingsworth immediately phoned Zevtchin at his home, who responded by coming to the hospital within minutes. Upon his arrival Zevtchin received a short briefing from Hollingsworth in the hallway of the hospital and then entered the accident ward. He asked, “Who did the stabbing?” Jefferson raised her hand and said, “I did. I think I got the wrong one.” Then in response to further questions by Zevtchin, Jefferson detailed the occurrence and its background. The court below, relying on our decision in Commonwealth v. Negri, 419 Pa. 117, 213 A. 2d 670 (1965), concluded that since the statements to officer Zevtchin were made absent forewarning of constitutional rights, testimony thereof should have been excluded at trial. Negri has since been reconsidered by this Court and is not now controlling. See, Commonwealth v. Schmidt, 423 Pa. 432, 224 A. 2d 625 (1966). Since the trial herein concluded on April 22, 1965, evidence of the inculpatory statements involved was not rendered constitutionally inadmissible at trial merely because the police did not adhere to the “in-custody” warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). See, Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. North Carolina, 384 U.S. 737 (1966); and, Commonwealth v. Cheeks, 423 Pa. 67, 223 A. 2d 291 (1966). However, since the trial was subsequent to June 22, 1964, Escobedo v. Illinois, 378 U.S. 478 (1964), does apply, and whether or not Jefferson’s constitutional rights were violated at the time the statements were made must be determined in the light of that decision. See, Johnson v. New Jersey, supra. It is now settled that under Escobedo, an individual subject to police questioning is not deprived of his constitutional right to counsel unless such assistance is requested and denied. See, Commonwealth v. Schmidt, supra. Hence, since Jefferson made no request for counsel, the absence thereof, or an effective waiver of the right thereto, did not ipso facto render testimony of the statements constitutionally inadmissible. But, Jefferson was also not advised of her right to remain silent and this, in our opinion, under the teaching of Escobedo precluded evidentiary use of the statements made to Officer Zevtchin. While it is true that Escobedo, in the main, dealt with the right to counsel as guaranteed by the Sixth Amendment to the United States Constitution, it also concerned the right to remain silent, stemming from the Fifth Amendment proscribing self-incrimination. This is made clear in Miranda v. Arizona, supra, at page 465, where the court in discussion and explanation of the Escobedo decision said: “Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision . . , . This was no isolated factor, but an essential ingredient in our decision.” Counsel for the Commonwealth indicates agreement with our conclusion, that aside from any right to the assistance of counsel, Escobedo requires that an indi vidual, subject to police questioning be forewarned of the right to remain silent once “the adversary system” begins to operate. However, it is earnestly argued that the point had not been reached in the investigation of the present case where such warning was required. In other words, it is urged that even at the time the statements were made to Officer Zevtchin, the adversary system had not yet begun to operate, and the police were still engaged in a general questioning of citizens to determine just what did happen. The above contention is certainly correct so far as it relates to the statements of Jefferson to Officer Hollingsworth. As of that time there is not a scintilla in the record to indicate that this officer had even a suspicion Jefferson committed a criminal act. His inquiry, “What happened?” was directed to all those present in the accident ward, and to no one in particular. Jefferson’s response was truly a volunteered, spontaneous, freely-made utterance to general questioning of citizens in the police fact-finding process. The evidentiary use of such volunteered statements is in no way affected by either Miranda or Escobedo. Cf. Commonwealth v. Eperjesi, 423 Pa. 455, 224 A. 2d 216 (1966), and cases cited therein. However, when the statements were made in response to questions of Officer Zevtchin, a new situation had arisen. As of then, Zevtchin knew there had been a stabbing and Jefferson was, by her own admission, the perpetrator. She should immediately have been advised of her right to remain silent before further questioning ensued, and such warning not having been given renders her statements made from that point on constitutionally inadmissible. In Escobedo, the United States Supreme Court spoke of the adversary system beginning when the questioning situation changed from a general inquiry into an unsolved crime, to one which focused on a particular suspect for the purpose of eliciting a confession. This posed a problem since the exact demarcation between the investigatory and accusatorial stages in police inquiries is frequently difficult to pinpoint. In an effort to eradicate this difficulty, the court in Miranda> specifically said the adversary system begins to operate and warnings of constitutional rights are required once questioning is initiated of a person who “has been taken into custody or otherwise deprived of his freedom of action in any significant way.” This, it said “is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.” See, Miranda v. Arizona, supra, n.4 at 444. Herein, after Jefferson’s admissions to Hollingsworth, the investigation had certainly begun to focus on her as the accused; and, she was certainly not free to leave and at least technically “in custody.” Custodial interrogation is not limited to police station questioning or that occurring after a formal arrest. Nor are we persuaded, that the failure of defense counsel to enter a timely objection to the challenged evidence at trial constituted an effective waiver of the right of Jefferson to raise the question of the admissibility of the evidence in the new trial motion below. As a general rule, if the admission of evidence is to be reviewed, an objection to the introduction thereof, with stated reasons, should be noted of record at trial. See, 1 Henry, Pennsylvania Trial Evidence §§418, 419 (3d ed. 1940). And, an insistence on compliance with this procedural regulation serves a legitimate state interest. However, an individual foregoes the privilege of assert ing a claim of violation of constitutional rights only if he knowingly and intelligently decides not to insist thereon, or if his counsel for purposes of trial strategy decides not to raise the question. See, Henry v. Mississippi, 379 U.S. 443 (1965). See also, State-Post Conviction Remedies, 40 N.Y.U. L. Rev. 170-171 (1965). The instant trial occurred when the law was in a state of confusion as to the warnings required to be given an accused during police questioning in order to render any statements he might make, as a result thereof, constitutionally admissible against him at trial. In fact, until the announcement of the decision in Miranda, v. Arizona, supra, the full significance of Escobedo which is controlling here was in serious doubt, and if the courts were confused, defendants and their counsel could hardly be charged with knowledge of their rights under that decision. Moreover, a reading of the record does not indicate that the failure to object involved any trial strategy or any knowing and intelligent waiver of Jefferson’s constitutional rights. Under the circumstances, it is our conclusion that the failure to object did not constitute a waiver of the claim. Order affirmed. No challenge to the Commonwealth’s right to appeal has been interposed. Since a pure question of law is presented, the appeal is proper. See, Commonwealth v. Melton, 402 Pa. 628, 168 A. 2d 328 (1962). The instant trial was prior to the Negri decision. This, of course, is not true in a case involving police interrogations governed by Miranda v. Arizona, supra. However, as noted before, Miranda does not apply here. Por a scholarly discussion of the accusatorial stage in a police inquiry, as distinguished from the investigatory stage, see, “The Criminal Prosecution in England”, by Lord Patrick Devlin. This has been interpreted to mean that the Miranda and Mscomedo rules began to operate when the questioned individual might be compelled (as distinguished from “coerced”) in some way to incriminate himself. See, People v. Allen, 272 N.Y.S. 2d 249 (1966) ; 79 Harv. L. Rev. 935, 982 (1966) ; and 28 U. Pitt. L. Rev. 77, 79 (1966).

Opinion by Mr. Justice Pomeroy, On July 13, 1951, appellant Lamar Faison shot and killed one Harold R. Dennis. The following day appellant was apprehended and charged with murder. In May 1952, following a trial by jury, at which he was represented by privately-retained counsel, appellant was found guilty of murder in the first degree, and his penalty was fixed at life imprisonment. Thereafter, appellant’s trial counsel filed a motion for new trial which was denied by the trial court after a hearing. In accordance with the penalty fixed by the jury, the appellant wag sentenced to life imprisonment. At the close of the hearing, appellant’s attorney, speaking on the record, informed appellant that he had forty-five days in which to file an appeal from the judgment of sentence. Thereupon he moved to withdraw as counsel for the appellant and was granted permission to do so by the trial court. No appeal was taken. In 1967, appellant filed successive petitions for writs of habeas corpus in. the Court of Quarter Sessions of Philadelphia County and in the District Court of the United States for the Eastern District of Pennsylvania. Both these petitions were denied; neither denial was appealed. Thereafter in September 1967, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. 1180-1 et seq., alleging, inter alia, the obstruction of his right to appeal and requesting as relief the “right of direct appeal nunc pro tunc.” At a hearing limited to the issue of appellant’s right to appeal, the lower court found that after his trial counsel had withdrawn, appellant had requested the trial court to appoint counsel, but this request was denied. The hearing court further found that appellant at that time was unable to afford counsel for the prosecution of an appeal. On these facts the court concluded that Faison had been denied his Douglas rights and he was “granted 45 days to appeal your [petitioner’s] initial trial to the State Supreme Court.” Before treating the questions presented by this appeal, it is necessary to state briefly the facts surrounding the death of Harold Dennis as they were adduced at trial. All parties agreed that appellant had in fact shot and killed Dennis in the parlor of the Dennis home. The issues at trial were whether the shooting had been in self-defense, and the nature and degree of the homicide involved. The Commonwealth’s principal witnesses were Mrs. Effew Dennis, wife of the deceased, and Mrs. Flossie Barksdale, Mrs. Dennis’ sister. Mrs. Dennis was present at the time of the shooting and was herself shot twice during the ensuing struggle. At trial, Mrs. Dennis gave an eyewitness account of the incident. According to her narrative, appellant came to their house seeking Mrs. Barksdale; after having joined them for dinner and as he was about to leave their home, he confronted them with a gun and without provocation shot Mr. Dennis. The bulk of Mrs. Barksdale’s testimony, which was discursive and occasionally unresponsive, concerned her relationship with appellant. Mrs. Barksdale testified that she had been seeing appellant for some ten months prior to the mnrder. Their relationship, according to her account, had begun when appellant had. followed her home one night after work and raped her; she stated that she continued to see appellant after that time only because he threatened to kill her and her three children if she left him or refused to comply with his wishes. Mrs. Barksdale further testified, that appellant had once held her captive in his room for three days, and that in connection with his threats to her he had repeatedly pointed at her the same pistol which he used in the slaying of Dennis. This testimony was presented by the Commonwealth in support of its theory of the murder, viz., that appellant, angered that Mrs. Barksdale had left him, had gone to the Dennis home in search of her; suspecting that Mr. Dennis was assisting Mrs. Barksdale in eluding him, appellant transferred his malice and anger to Dennis and shot him. The Commonwealth’s theory was apparently derived from, and was supported by, a five page statement appellant made to the police when he was apprehended the morning after the slaying. Appellant was arrested in a taproom-restaurant after he had told the owner that he had-shot a man, in full anticipation that the police would be called. The statement in question was made to the police some three hours after appellant was apprehended and after appellant had been formally interrogated by the police for approximately one-half hour. The statement was given after appellant had been told of the charge on which he had been arrested, warned that anything he said could be used against him, and informed that he was entitled to a lawyer. Appellant in this statement specifically noted that the account contained therein was true and that the statement was given voluntarily. His account of the previous day’s events supported his own contention that the slaying was an act of self-defense; The statement was read to the jury by the interrogating officer as part of the Commonwealth’s case. According to the appellant’s statement to the police, the facts of the case were as follows: On the day of the murder, Mrs. Dennis told appellant that Flossie would be telephoning her at Mrs.'Dennis’ home in the afternoon. Appellant thereafter went to the Dennis’ but found that Mrs. Barksdale had not been heard from. He then went to her home, let himself in through the front window, and- again failing to find her, re: turned to the Dennis’ and had dinner with them. While he was there, Mr. Dennis received a phone call from Mr. Barksdale, Flossie’s husband. When Dennis finished speaking with Barksdale, he accused appellant of having broken into the Barksdale home, and appellant heatedly denied the accusation. Dennis then threatened to kill appellant, and advanced on him with an open switch blade knife. When Dennis gave appellant no chance to leave the room, appellant shot him once in the chest.. He stated that he had gone to the Dennis’ home hoping to find Mrs. Barksdale who he “intended to kill” because “[she] treated me so dirty,” and he concluded that “what all the trouble come from was Flossie.” . The case for appellant was predicated on the theory of self-defense. Appellant testified in his own behalf at considerable length and corroborated the narrative which he had given the police in all material respects: He testified that after he had dined with the Dennis’ and as he was about to leave their home, Dennis received a phone call. When Dennis hung up, he accused appellant of having broken into the Barksdale home. When appellant denied this, Dennis threatened to kill him, and advanced on him with a switch blade. Appellant testified that he asked Dennis to let him leave, and that he shot Dennis only when he continued to threaten him and when he was some few feet distance from him. Appellant further testified that he never intended to kill Mrs. Barksdale, although he admitted that he may have made comments to the contrary while he was in custody. When cross-examined about his confession which he had given to the police, appellant repeatedly stated that he did not remember signing the statement but that he would not deny that he had made and signed it. He stated that at the time of his arrest, he had been drinking and was upset and not at all himself. On this appeal, Faison raises four questions for this Court’s consideration: (1) whether appellant was denied his constitutional right to the effective assistance of counsel when his attorney raised only three questions on voir dire and directed those questions to the jurors as a panel rather than questioning them individually; (2) whether the introduction of evidence of appellant’s prior criminal record—three previous homicide convictions—was a denial of due process; (3) whether the trial court erred in permitting the Commonwealth to introduce, over appellant’s objection, allegedly irrelevant and prejudicial testimony of Mrs. Barksdale; and (4) whether the admission into evidence of his statement to the police without a prelimi nary determination of its voluntariness by the trial judge outside the presence of the jury was a denial of due process. The threshold problem, however, is the determination of which, if any, of these questions is properly before us at this time. As indicated above, this is a direct, albeit belated, appeal from the original judgment of sentence imposed upon appellant by the Philadelphia County Court of Oyer and Terminer. In such a nunc pro tunc appeal taken pursuant to a finding that the appellant was denied his Douglas rights, the appellant may raise only those issues which might have been pressed on a timely appeal. The ordinary standards governing the scope of appellate review are complicated, however, in two respects by the time interval between the judgment of sentence and the nunc pro tunc appeal: (1) intervening court decisions which declare new rights, constitutional or otherwise, may affect the grounds of appellant’s appeal, providing a basis for relief which was not available during appellant’s original appeal period; and (2) post-conviction or collateral proceedings initiated by appellant between sentence and appeal may affect those issues which he may properly press on appeal. As to the first complicating factor, we hold that an appellant may press on a nunc pro tunc appeal an issue premised on a constitutional right which was enunciated subsequent to his original judgment of sentence, provided that this right has been given such retroactive effect that it would have been available to appellant had an appeal been timely filed. See Commonwealth v. Little, 432 Pa. 256, 248 A. 2d 32 (1968). In Commonwealth v. Dessus, 423 Pa. 177, 224 A. 2d 188 (1966) a unanimous court, speaking through Mr. Chief Justice Bell, stated that an issue raised for the first time on appeal would be considered “where public policy or the interests of justice require a consideration, and determination thereof.” Both these considerations dictate that an appellant should be able to press on appeal any issue as to a constitutional right enunciated after his judgment of sentence and given retroactive effect. Were this not the case, the appeal would not be an end to litigation but only a prelude to post-conviction proceedings in which the constitutional issue would be raised. To bar an appellant from raising such issues would serve neither the ends of fairness to the appellant nor the policy of expeditiously terminating litigation. See also Kuchinic v. McCrory, 422 Pa. 620, 222 A. 2d 897 (1966). The second problem posed by the time lag between judgment of sentence and a nunc pro tunc appeal concerns the effect to be given to intervening collateral proceedings brought by appellant while represented by counsel. Where issues fully cognizable therein have been raised and fully litigated within the meaning of §4 of the Post Conviction Hearing Act, supra, it would serve no useful purpose to reconsider such issues upon direct appeal. Similarly, where issues were available to, but were not raised by, petitioner in prior counseled PCHA proceedings, that failure to press the issue may constitute a waiver within the meaning of §4. Section 4 embodies a rule of procedural finality whereby the failure to assert an alleged constitutional deprivation in earlier litigation forecloses the opportunity to challenge that deprivation in a subsequent proceeding. Commonwealth v. Satchell, 430 Pa. 443, 243 A. 2d 381 (1968) and Commonwealth v. Mumford, 430 Pa. 451, 243 A. 2d 440 (1968). Where appellant has waived the opportunity to litigate an issue within the meaning of §4, that waiver shall foreclose later review of the issue in post-conviction proceedings and in nunc pro tunc appeals such as the present one. Thus we hold that final litigation or a knowing waiver of an issue cognizable in collateral proceedings will preclude consideration of such issues in an appeal nunc pro tunc. In the light of these principles as to the availability of . review, we now consider the issues raised by appellant. First, appellant contends that the conduct of his trial counsel in raising only three questions in his voir dire examination of the prospective jurors and in examining the jurors as a group rather than individually was a denial of appellant’s constitutional right to the effective assistance of counsel. Although the issue thus presented was not raised below and does not involve a constitutional right given retroactive application, the issue is properly before us. To require appellant-to raise this issue below, i.e., to require appellant’s trial counsel to challenge his own competence at trial or in post-trial motions, would clearly be pointless. Where an appellant is represented in the appeal nunc pro tunc by counsel other than the trial counsel and an issue of competent counsel arguably appears in the record, the considerations set forth in Commonwealth v. Dessus, supra, dictate that such an issue should be considered. In the present case, however, while the issue of competent counsel is properly before us, appellant’s argu ment on this point is clearly without merit. We have held that the effective assistance of counsel is not denied so long as the course of action taken by counsel has some reasonable basis designed to advance his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 345 A. 2d 349 (1967); Commonwealth v. Walker, 433 Pa. 124, 130, 249 A. 2d 283 (1969). We conclude that this standard was satisfied by counsel’s resort to an expeditious voir dire examination of the jurors as a panel where only three identical questions were to be raised, and we find no constitutional imperative which would require counsel to question the jurors on other, unspecified grounds. Although the practice in capital cases of placing each prospective juror under oath and examining him individually before accepting or rejecting him is one of long standing in this Commonwealth, such an individual examination was not required at the time of appellant’s trial. See Commonwealth v. Cephas, 213 Pa. Superior Ct. 278, 279, 247 A. 2d 662 (1968); Commonwealth v. Exler, 61 Pa. Superior Ct. 423 (1915). We hold that appellant’s right to the assistance of counsel was not abridged by the method in which the voir dire was conducted. Second, appellant contends that the introduction of evidence of his prior criminal record under the then prevailing “Parker rule” procedure was a denial of due process. This issue was raised in both of appellant’s habeas corpus petitions, and both the state and the federal courts decided the point adversely to petitioner on the authority of Spencer v. Texas, 385 U.S. 554 (1965), reh. denied, 386 U.S. 969 (1967). Under the facts of this case, we conclude that appellant has had a full judicial determination of this issue. Appellant’s third contention is that the trial court erred in refusing appellant’s motion for withdrawal of a juror and declaration of a mistrial because of the testimony of Mrs. Barksdale; appellant challenges that testimony on the ground that it was irrelevant, prejudicial and tended to show that appellant had committed prior unrelated crimes. Appellant objected at trial to Mrs. Barksdale’s testimony, and the prejudicial char acter of that testimony was raised in appellant’s new trial motion. Accordingly, the admissibility of that testimony is properly before us. Beyond question, Mrs. Barksdale’s testimony was often unresponsive and highly colored by the obvious ill-will she bore the appellant. As discussed above, the Commonwealth’s theory of the murder was that appellant’s- malice toward and intent to kill Mrs. Barksdale was transferred to Mr. Dennis and that this transfer of hostility provided the explanation for an otherwise motiveless killing. Under this theory, Mrs. Barksdale’s testimony was relevant to the proof of appellant’s motive and was therefore admissible. It is well settled that “[ejvidence to prove motive, or intent, or plan, or design, or ill will or malice is always admissible.” Commonwealth v. Kravitz, 400 Pa. 198, 216, 161 A. 2d 861 (1960), cert. denied, 365 U.S. 846 (1961); Commonwealth v. Boden, 399 Pa. 298, 159 A. 2d 894 (1960). Further, evidence of prior occurrences (e.g., previous threats) and prior offenses, if they are related to the offense for which defendant is on trial, may be admitted to show malice, motive, or intent. See Commonwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145 (1949); Commonwealth v. Burdell, 380 Pa. 43, 110 A. 2d 193 (1955); and Commonwealth v. Boulden, 179 Pa. Superior Ct. 328, 116 A. 2d 867 (1955). In the present case, Mrs. Barksdale’s testimony as to appellant’s threats to her and his rape of her were relevant to the task of establishing appellant’s settled pattern' of malice as to her. The familial relationship of Dennis to Mrs. Barksdale, the fact that appellant had been seeking Mrs. Barksdale at the Dennis home and • ap: parently believed that the Dennis’ knew her whereabouts, and the fact that the murder followed Dennis’ phone conversation with Mr. Barksdale are factors which, in our view, support the connection which the Commonwealth intended to establish between appel lant’s settled pattern of malice toward Mrs. Barksdale and his slaying of Dennis. Moreover, the trial judge carefully and explicitly instructed the jurors to disregard any opinions expressed by Mrs. Barksdale and any statements she made concerning appellant’s alleged prior crimes. On the facts of this case, we conclude that Mrs. Barksdale’s testimony as to appellant’s prior conduct was relevant to proving his malice toward her, and that given her relationship to Dennis proof of such malice was admissible on the question of appellant’s motive for slaying Dennis. A motion for the withdrawal of a juror is addressed to the sound discretion of the trial judge. Richman v. Watkins, 376 Pa. 510, 103 A. 2d 688 (1954). We find no abuse of discretion in the refusal to grant that motion here, nor can we find that admission of the questioned testimony was error. Appellant’s final contention is that the admission into evidence of his statement to police without a prior determination by the trial court that the statement was voluntary constituted a denial of due process under the terms of Jackson v. Denno, 378 U.S. 368 (1964). The rule enunciated by Jachson has been given retroactive effect, and this issue would therefore ordinarily be available to appellant. Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A. 2d 283 (1965). Subsequent to the date of the Jachson decision, however, appellant initiated state habeas corpus proceedings in which he was represented by counsel. Appellant failed to question the voluntariness of his confession in those proceedings and, absent extraordinary circumstances which are not here alleged, he must be deemed to have waived the issue within the meaning of §4 of PCHA. As indicated above, such a waiver is deemed a knoAving bypass of an available state remedy; it precludes appellant from raising the issue in the present appeal. Commonwealth v. Satchell, supra. See, also, Henry v. Mississippi, 379 U.S. 443 (1965). Judgment affirmed. Mr. Chief Justice Bell concurs in the result. The appellant’s state habeas corpus petition challenged on due process grounds the admission of evidence of defendant’s prior guilty pleas to charges of homicide. Appellant’s trial preceded Pennsylvania’s enactment of the Split-Verdict Act, Act of December 1, 1959, P. L. 1621, §1, 18 P.S. §4701, and the admission of this evidence of prior convictions was in accord with established practice. See Commonwealth v. Parker, 294 Pa. 144, 143 Atl. 904 (1928). Appellant’s due process challenge to that procedure was denied by the lower court on the authority of Spencer v. Texas, 385 U.S. 554 (1967), reh. denied, 386 U.S. 969 (1967), in which the United States Supreme Court upheld the constitutionality of a similar Texas pro: cedure. Appellant’s Federal habeas corpus petition challenged: “(1) the ineffective assistance of counsel; (2) the use of an involuntary confession as evidence against him at his trial; (3) the seating of the jury ‘en Bank’ (sic) without any questioning as to prejudice; (4) the use of an unrelated felony in his trial; (5) the introduction of petitioner’s prior criminal record at such a time as to deny him a fair trial; (6) denial of counsel at a critical stage of the proceedings against him; (7) the denial of counsel after his conviction to perfect an appeal.” The District Court found that only issue (5) had been previously raised' in a state court proceed ing, and it held that issue to have been correctly decided adversely to the petitioner. It declined to consider the merits of the other issues until they had been passed on by the state courts in postconyietion proceedings. It noted parenthetically that petitioner’s allegation that he was denied counsel to perfect an appeal, if raised in the state courts, would apparently be a ground for relief under this Court’s holding in Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A. 2d 613 (1965). The record of the PCHA hearing indicates that appellant’s trial counsel was provided for him by members of his family; that they failed to pay trial counsel his full fee; and that they were unable to provide further legal assistance to appellant in his desire to appeal his conviction and sentence. Since a motion for a new trial had been filed by Faison and denied, the court hearing the PCHA petition was correct, on finding a denial of appellant’s Douglas rights, in stating that appellant was entitled to a direct appeal. (In cases where no post-trial motions have been filed, the hearing court upon finding that a petitioner has been denied his Douglas rights should transfer the ease to the trial court with instructions to appoint counsel for the petitioner (if indigent) and to permit the filing and arguing of post-trial motions.) Although in the present case, this Court granted an “appeal specially allowed nuno pro tuno" upon motion of appellant’s counsel for leave to file such an appeal, we believe that this pro cedure was unnecessary, notwithstanding contrary indications in our prior eases. See Commonwealth v. Stewart, 430 Pa. 7, 241 A. 2d 764 (1968) and Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A. 2d 220 (1967). Appellant was clearly entitled to appeal his conviction and sentence to this Court in 1953, and he was entitled to the assistance of counsel in the preparation and prosecution of that appeal. See Pennsylvania Constitution of 1874, Article V, §24 (now Article V, §9, following the constitutional amendments of 1968) ; Act of February 15, 1870, P. L. 15, §1, 19 P.S. §1186; Douglas v. California, 372 U.S. 353 (1963); and Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A. 2d 613 (1965). Therefore, once there has been a judicial determination that' an' appellant has been denied his right to appeal with the assistance of counsel, that appellant is entitled, without further motion, to prosecute a timely appeal in the appellate court having jurisdiction. Our designation of such a delayed appeal as an appeal, “nunc pro tuno" should in no wise be taken to mean that the appeal is a matter of grace rather than right. Each of the principal witnesses at trial—Mrs. Dennis,- Mrs. Barksdale, and appellant—tended to speak at some length and each of the - attorneys encountered some difficulty persuading the witnesses to limit their testimony to the questions asked. Apparently in response to this situation, the trial judge (Flood, J.) allowed the witnesses on both sides considerable leeway in giving their testimony. In an attempt to facilitate the development of a narrative account of the events in question, the court also allowed the attorneys more freedom in the manner of phrasing their questions than would, have been customary. The appellant asserts that this statement was involuntary and so improperly admitted into evidence. At p. 448, infra, we find this issue to have been waived. We note that a contrary view was expressed in Commonwealth v. Jefferson, 430 Pa. 532, 243 A. 2d 412 (1968). The opinion in that case represented the view of only two members of the Court, and a majority of this Court has subsequently held of “no binding precedential value” the statement in that opinion that the rights on a nunc pro tuno appeal are determined by the law as it existed when a timely appeal would have been filed. See Commonwealth v. Little, supra, at p. 260. The constitutional right to the effective assistance of counsel has been secure at least since Powell v. Alabama, 287 U.S. 45 (1932). Defense counsel asked whether any of the jurors knew the appellant or either of the attorneys involved in the case and whether they had any independent knowledge of the case. He also explained that evidence of appellant’s prior criminal record would be introduced for the limited purpose of assisting jurors in fixing the penalty if defendant were found guilty and asked the jurors whether they would feel unable to limit their consideration of this record of prior offenses to the purpose for which it was intended. The District Attorney also conducted his voir dire (which was still more limited) before the jurors sitting as a panel. Under Rule 1106 of the Rules of Criminal Procedure, this practice has been required in capital cases since August 1, 1968. The comments to Rule 1106 indicate, however, that even in capital cases the voir dire examination may be waived if this waiver is the result of affirmative agreement by both the defendant and the Commonwealth. (In noncapital cases, the group examination of prospective jurors is allowed by Rule 1107, with the individual examination a permissible alternative.) We note that subsequent to the lower court’s denial of appellant’s state habeas corpus petition, this Court has held that Spencer v. Texas, supra, does not preclude a state court from finding that the introduction of a defendant’s prior criminal record was so prejudicial under the facts of the case that it amounted to a denial of due process. See Commonwealth v. Chapasco, 436 Pa. 193, 258 A. 2d 638 (1969). We have reviewed the record in this case and are satisfied that under the standards set forth in the Chapasco case, appellant was not denied due process. See also Commonwealth ex rel. Marino v. Myers, 419 Pa. 448, 214 A. 2d 491 (1965), in which, like the case at hand, the killing was admitted and the issue at trial was the existence of a defense and the degree of the homicide. As noted above, the testimony of Mrs. Barksdale was rather discursive. Given the character of her statements, appellant’s trial counsel was hard put to object to specific responses, and the trial court appears to have understood and accepted these objections as being addressed to the whole course of the witness’ testimony concerning her relationship with appellant. Illustrative of its charge is the following instruction given by the trial judge: “Mrs. Barksdale and Mrs. Dennis were both pretty emotional on the stand. They said some things which you should completely disregard. Mrs. Barksdale, for instance, said he raped her. She didn’t even say what she meant by that. Obviously, if he was living with her for a long time, and the evidence is not too clear as to just what happened, that isn’t very likely. At any rate, she said nothing more about it and you should completely lay that aside from the situation as having nothing to do with your final decision.” 'Appellant also contends that the fact that the statement was given while appellant was not represented by counsel was a denial of due process. This argument is without merit. See Escobedo v. Illinois, 378 U.S. 478 (1964); Commonwealth v. Negri, 419 Pa. 117, 213 A. 2d 670 (1965); Miranda v. Arizona, 384 U.S. 436 (1966); Johnson v. New Jersey, 384 U.S. 719 (1966). We note, moreover, that appellant’s counsel candidly states in his brief that the issue is raised because “it was raised by Appellant in his petition under the Post Conviction Hearing Act, which petition was filed in propria persona.”

Opinion- by Mr. Justice Moschzisker, Edwin J. Haddock, an engineer by profession, employed on a salary, with no fixed hours of service, by the Edgewater Steel Company, defendant, at its plant in Allegheny County,- was instructed by the president of that corporation to go to Lowellville, Ohio, and examine the natural gas burners in the open hearth furnaces of the Youngstown Iron & Steel Company, for the purpose of obtaining information to be used in the construction of similar burners in defendant’s works. In pursuance of these instructions, Haddock left Pittsburgh at midday, April 6, 1917, and arrived at his destination that afternoon. He made the required examination, and returned to Pittsburgh, by railroad, the same evening. About 11:30 p. m., while on the way to his residence in the latter city, he was accidentally struck by an automobile, at a street crossing, which casualty resulted, in his death. Defendant company had sent deceased previously on like trips. After finding the material facts just stated, the referee concluded that, at the time Haddock sustained the injury which caused his death, “He was in the course of his employment with the defendant company within the meaning of Section 301, Article III of the Workmen’s Compensation Act of June 2, 1915 (P. L. 738),” and awarded compensation to his widow, the claimant. The defendant, and the Maryland Casualty Company, insurance carrier, both appealed to the Workmen’s Compensation Board, which affirmed the referee; from this decision an appeal was taken to the Court of Common Pleas of Allegheny County, which affirmed the board; the present appeal followed. As correctly stated by Chairman Mackey of the compensation board, in his opinion sustaining the award, “The deceased was not an ordinary day laborer, whose duties ceased upon the blowing of a whistle and leaving the employer’s premises; but was a skilled and'teehnical employee receiving sufficient compensation to enable-the employer to call for his contribution of expert knowledge during any hour of the day or night. He was commissioned to go to another city to transact business of importance for Ms employer. He surely was in the course of his employment at the conclusion of that day’s engagement when he was taken to a train near Youngstown for the purpose of returmng to Pittsburgh. No one could deny that he was in the course of his employment when on the train for his destination — Pittsburgh. It was necessary for him to arrive there at night; had he gone directly from the railroad station to Oakmont, the site of the employer’s plant, no one would deny that, while on this journey, he was still in the course of his employment. Who, then, can deny that he was in the course of employment when, having arrived at Pittsburgh late at night, he did the usual, ordinary and reasonable thing in going to his home before he reported to his employer?” This is not the case of an employee injured, after regular working hours, on the way to his home; and we agree with' the court below that there is nothing upon the record to show Haddock had, at the time of the accident, “ceased to be active in the furtherance of his employer’s business.” True, thejEacts as found indicate that plaintiff’s husband intended stopping at his own residence, to sleep for the night, before reporting the results of his trip of investigation to the president of the defendant corporation; but, none the less, he was still upon his employer’s errand and, in that sense, actually engaged in the furtherance of the latter’s business or affairs. Since deceased was compelled to return to the city at an hour when he could not at once communicate with his superior, and had to stay somewhere until he could report, he cannot be charged with a departure from his employer’s service because, when hurt, he was going to his home, for a lodging, rather than to an hotel; hence the findings of the referee are ample to sustain the ultimate conclusion upon which the award of compensation rests, to the effect that plaintiff’s husband met his death by accident during the course of his employment with the defendant company. In considering the legal aspect of the question, whether or not the underlying findings reported by the referee are sufficient to bring the case within the definition of the phrase “course of employment,” contained in Section 301, Article III, of the compensation ■ act, we have kept in mind the liberal construction placed upon the words of such statutory definition by this court in Dzikowska v. Superior Steel Co., 259 Pa. 578, and the right and power vested in the compensation authorities to find the facts, whether from direct proof, circumstantial evidence, or by inference from other facts: see Mucker v. Carnegie Steel Co., 263 Pa. 113. The judgment of the court below is affirmed.

Opinion by Me. Justice Bell, This is an appeal from the refusal of a variance by (the Zoning Board and by) the Court of Common Pleas from a Zoning Ordinance adopted by the Commissioners of Cheltenham Township in 1929. The lower Court, after hearing evidence in addition to that which was presented before the Board of Adjustment, made findings of fact (almost all of which were admitted), which are substantially as follows: The petitioner purchased at auction in 1944 or 1945 premises known as lots 14 and 15 on a plan of Suncrest, Cheltenham Township, Montgomery County. The lots are irregular but have a total area of approximately 32,500 square feet. The area Avas classified as “AA” residential in 1929; and by amendment adopted August 5, 1941, no building can be built on a lot unless the lot has an area of at least 20,000 square feet. On March 16, 1949, petitioner conveyed all of lot 15 and a triangular portion of lot 14 to Helen V. Poster, after he had constructed a dwelling thereon. The total area conveyed Avas 20,130 square feet. A portion of lot 14 was included in the conveyance in order to comply with the 20,000 square feet required by the Zoning Ordinance. Petitioner retained title to a rectangular portion of lot 14 containing an area of 12,448.42 square feet, or approximately 62% of the area required for a residence under the ordinance. • ■ Petitioner desires a variance in order to construct a stone dwelling house on the remaining portion of his lot and agreed that if permitted to do so he will comply Avith all of the other portions of the Zoning Ordinance. Petitioner was engaged in the building business • for • 26 years and had actual. knowledge of the zoning -regulations when he took title in 1945 to lots 14 and; 15- . When petitioner sold-his house-and lot to Mrs. Foster he told her that a house could not be built on the remaining portion of his lot, but he intended either to buy the adjacent lot 13 or sell the remaining portion of his lot to Mrs. Foster or to the owner of the neighboring ground. Mrs. Foster and the owner of lot 13 purchased their properties in reliance on the provisions of the zoning ordinance. The owner of lot 13 offered and is still willing to pay to petitioner, petitioner’s cost of the portion of lot 14 which he still owns, plus 6% interest, plus all of petitioner’s outlays for taxes for the lot. Petitioner is unwilling to sell. Both the Board of Adjustment and the lower Court concluded under these facts that petitioner had not proved unnecessary hardship and was not entitled to a variance. By the Act of June 24, 1331, P. L. 1206, §3107, as amended May 27, 1949, P. L. 1955, §59, 53 PS §19092-3107, and by the Ordinance passed pursuant thereto, the Board of Adjustment has the power, inter alia: “(3) 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 enforcement 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. . . . “Any person aggrieved by any decision of the board of adjustment . . . may . . . appeal to the court of common pleas of the county by petition, duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, specifying the grounds upon which he relies. . . . “If, upon the hearing it shall appear to the court that testimony is necessai*y for the proper disposition of the matter, it may take evidence. . . . The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.” In Medinger Appeal, 377 Pa. 217, 221, 104 A. 2d 118, the Court, quoting from Lord Appeal, 368 Pa. 121, 125, 81 A. 2d 533, said: “It is now well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation whenever they are necessary for the preservation of public health, safety, morals or general welfare, and not unjustly discriminatory, or arbitrary, or unreasonable, or confiscatory in their application to a particular or specific piece of property. [Citing numerous cases.]” Municipalities have power to zone land for residential purposes and to establish minimum lot requirements in connection therewith, provided they are reasonable for the residential districts involved and bear a reasonable relation to the health and safety of the community. The Courts have even gone so far as to hold that municipalities may, without violating the Constitution, exclude from residential districts, — for reasons of health and safety — business and trade of every sort, including hotels and apartment houses: Village of Euclid v. Ambler Realty Co., 272 U.S. 365; Ward’s Appeal, 289 Pa. 458, 137 A. 630; Jennings Appeal, 330 Pa. 154, 198 A. 621. See also: Brosnan’s Appeal, 330 Pa. 161, 198 A. 629 and Elkins Park Improvement Assn. Zonmg Case, 361 Pa. 322, 64 A. 2d 783. A lot area of not less than 7500 square feet per family in an “AA” residential district was impliedly approved by this Court in Appeal of Elkins Park Improvement Assn., 361 Pa., supra; and a minimum lot requirement of 4000 square feet per family for a one-family dwelling was impliedly approved in Brosnan’s Appeal, 330 Pa., supra. In Brosnan’s Appeal, where the facts were analogous — petitioner was denied a per mit to build a single dwelling house on a rectangular lot 40 by 100 feet — the Court said: “. . . land once subjected by the conduct of the parties to the restrictions specified in the ordinance could not be relieved from the restriction by the mere device of conveying it to an adjoining owner, or of treating it as part of an adjoining lot. ... To hold otherwise would render impotent and utterly useless the salutary provisions of the zoning ordinance which are designed to promote the health and safety of the city’s inhabitants by providing for each individual dwelling house an ample lot area and sufficient side yards.” The zoning ordinance requiring 20,000 square feet of land — less than a half acre — for a dwelling in the district in question was a valid exercise of the municipality’s power since it bore a reasonable relation to lxealth and safety. Furthermore, the ordinance was not ax*bitrary or capricious or unjustly discriminatory or confiscatory in its application to petitioner’s piece of pi'operty. Especially is this so in the present case, since, if there was any unnecessary hardship, petitioner himself created it with full knowledge of the restrictions in the zoning ordinance. If we Avere to hold that this petitioner suffered unnecessary hardship, every other property owner in the area classified “AA” residential, would similarly be entitled to build his home on a lot of 12,000 square feet, which of course would nullify the ordinance. A board of adjustment has no power or right to set at naught a zoning statute or ordinance under the guise of a variance: Lukens v. Ridley Township Zoning Board, 367 Pa. 608, 80 A. 2d 765; Devereaux Foundation, Inc. Zoning Case, 351 Pa. 478, 41 A. 2d 744. Contrary to. appellant’s contentions, (a) a pei’son who seeks a variance has the burden of establishing unnecessary hardship, and :(b) the test in this case is not whether the board of adjustment committed a manifest abuse of discretion. In this case the lower Court took additional testimony and under such circumstances the test is not whether the board of adjustment, but whether the lower Court, committed a manifest abuse of discretion or an error of law. Where, as here, the Court took additional evidence and may under the Act “reverse or affirm in whole or in part, the decision appealed from as to it may appear just and proper”, it is clear that it is the Court’s decision as to what is just and proper, which must prevail: Dooling’s Windy Hill v. Springfield Twp., 371 Pa. 290, 89 A. 2d 505; Rolling Green Golf Club Case, 374 Pa. 450, 97 A. 2d 523; Lord Appeal, 368 Pa. 121, 81 A. 2d 533; Pincus v. Power, 376 Pa. 175, 101 A. 2d 914; Silverco, Inc. v. Zoning Board of Adjustment, 379 Pa. 497, 109 A. 2d 147; Walker v. Zoning Board of Adjustment, 380 Pa. 228, 110 A. 2d 414. Order and Decree affirmed; appellant to pay the costs. Apart from the clear language of the Act and the aforesaid cases, it would be unfair to convict a board of adjustment of an abuse of discretion when it did not have before it the testimony which was presented in the Court of Common Pleas and which might have caused it to render an entirely different decision.

OPINION OF THE COURT O’BRIEN, Justice. Appellant, Lawrence Triplett, a Philadelphia police officer, was tried by a judge sitting without a jury and found guilty of burglary, larceny and receiving stolen goods. Post-trial motions were denied and appellant was sentenced to a term of “one and one-half to five years in a state correctional institution. An appeal to the Superior Court resulted in an affirmance of appellant’s conviction. We granted allocatur and now reverse. The facts surrounding this appeal are as follows: On December 25, 1971, a burglary occurred at the Delmonico warehouse in the City of Philadelphia. Appellant and another police officer, in response to a radio call, proceeded to the warehouse. After their arrival at the scene, appellant and a fellow officer, finding no one in the warehouse, removed for their own benefit eight television sets. During the course of the removal of the television sets, appellant and his fellow officers were confronted by other members of the Philadelphia police force, who at trial testified that they saw appellant assist in the removal of the television sets. As a result of this conduct, appellant was taken before his police superiors and questioned. He was then arrested and convicted of the crimes of burglary, larceny and receiving stolen goods. We granted allocatur in this case to determine whether the decision of Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971) is applicable to the instant case, and whether this jurisdiction should follow the ruling of Harris. The Harris decision became relevant in the instant ease in the following manner. As a result of appellant’s actions at the Delmonico warehouse, he was called to police headquarters and questioned by his superiors. Before the questioning of appellant began, he was given “charter warnings,” which consisted of “I wish to inform you that this is an official investigation, and under the provisions of the Philadelphia Home Rule Charter, Section 10-110, you are required to cooperate fully and answer all questions. Do you understand?” Section 10-110 of the Philadelphia Home Rule Charter reads as follows: “If any officer or employee of the City shall willfully refuse or fail to appear before any court, or before the Council, or any committee thereof, or before any officer, department, board, commission or body authorized to conduct any hearing or inquiry, or having appeared, shall refuse to testify or to answer any question relating to the affairs or government of the City or the conduct of any City officer or employee on the ground that his testimony or answers would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any matter about which he may be asked to testify before such court or at any such hearing or inquiry, he shall forfeit his office or position, and shall not be eligible thereafter for employment to any position in the City service”. Lt. Margulis, who conducted the initial questioning of appellant, stated that appellant, through his police training, was completely familiar with Section 10-110 of the Philadelphia Home Rule Charter and the consequences of a police officer’s failure to answer the questions posed to him. As a result of the initial interview, appellant made certain admissions concerning his participation in the warehouse incident. Subsequent to the interview preceded by the charter warnings, appellant was given full Miranda warnings and made statements again admitting his participation in the warehouse burglary. Appellant filed a pre-trial motion to suppress all statements he gave during the interview preceded by charter warnings and those statements preceded by Miranda warnings. The suppression court, on the basis of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970), suppressed all statements made by appellant. However, at trial the Commonwealth, on the basis of Harris, supra, used the suppressed statements to impeach appellant’s trial testimony. Initially, we must point out that in our opinion, the statements made by appellant which were preceded by the charter warnings were properly suppressed by the court below. In Garrity, supra, the Supreme Court of the United States was presented with the issue of wheth- ■ er statements made by a police officer, who was compelled to answer questions based on a statute similar to the Philadelphia Home Rule Charter, Section 10-110, were inadmissible at a state criminal trial of the officer. We are in agreement with the rationale of Garrity and, therefore, conclude that the initial statements were properly suppressed. The court below then held that appellant’s ' statements which were made after he was given his Miranda warnings were also inadmissible because the statements, although preceded by Miranda warnings, were directly related to the prior constitutionally infirm statements and, therefore, inadmissible as being the product of the prior constitutionally infirm statements. We also agree with that determination. Moreover, the Commonwealth, in this appeal, does not dispute the propriety of the suppression court’s decision, but only argues that Harris should be and is the law of -this Commonwealth. Since this court has not directly spoken on the issue of whether Harris is to be applied in this Commonwealth, we feel it necessary to decide the issue in terms that will resolve the question in all situations. In Harris, the Supreme Court of the United States allowed the use of constitutionally infirm statements to impeach the credibility of a criminal defendant’s trial testimony if the infirm statement was obtained under circumstances that would not detract from the trustworthiness of the statement. We are of the opinion that any statement of a defendant declared inadmissible for any reason by a suppres sion court cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf at trial. This result is premised upon the logic espoused in the concurring opinion in Commonwealth v. Woods, 455 Pa. 1, 7, 312 A.2d 357, 360 (1973) wherein Mr. Justice Roberts, joined by the writer of this opinion and Mr. Justice Nix, stated: “Harris-type use of constitutionally infirm confessions forces upon an accused a grisly Hobson’s choice. Either an accused must forgo his right to testify, or he must risk the sure and devastating prejudice occasioned by the prosecution’s use of the impermissibly obtained confession at the critical rebuttal stage.” Lastly, we must point out that our prohibition against the use of constitutionally infirm statements to impeach the credibility of a criminal defendant testifying in his own behalf is premised upon Pennsylvania Constitution Article I, Section 9, P.S. Judgment of sentence reversed, and case remanded for proceedings consistent with this opinion. POMEROY, J., filed a concurring opinion. JONES, C. J., filed a dissenting opinion. EAGEN, J., filed a dissenting opinion.

Tilghman C. J. Edward White has been convicted of murder in the first degree, and judgment of death passed against him by the Court of Oyer and Terminer for the county of Cumberland. By permission of the attorney general, the record has been removed to this Court, and several errors have been assigned, on which we are now to deliver our opinion. The exceptions which have been taken, go both to the indictment and the process. To the indictment it is objected, first that the offence-is not charged with sufficient certainty, and next that it 'does not conclude against the form of the act of assembly.. 1. It is said in the indictment, that Edward White, with a certain stone which he held in his right hand, in and upon .the right side of the head, near the right temple of Samuel Sampson, feloniously, &c. did cast and throw; and that the said Edward White, with the'stone aforesaid, so as aforesaid cast and thrown, the aforesaid Samuel Sampson in and ' upon the right side of the head near the right temple of him the said Samuel Sampson, feloniously &c. did strike fkc. The objection is, that it is not said in the first instance, that White threw the stone at all, but only, that he threw with the stone; and that the subsequent averment that he struck Sampson with the stone, so as aforesaid cast and thrown, ' does not amount to a positive assertion, because it refers to the casting and throwing as aforesaid, when in fact it had not been said before that he did cast and throw it. The action of White is not as well described as it might have been; but upon the whole it is sufficiently alleged, that he threw the stone and struck. Sampson with it. Casting and throwing with a stone, cannot be understood as using a stone for the instrument of throwing; it was the object thrown, and the cast or throw was made upon the right side of the head of Samps'on. This to be sure is an awkward kind of expression, and not very good grammar; but in the words which follow it is positively asserted, that White struck the deceased with the stone cast as aforesaid. Taking it altogether then, it sufficiently appears that White threw a stone, with which he struck Sampson, and thus killed him. 2. Where a statute creates an offence, the indictment must charge it as being done against the form of the statute. But where the statute only inflicts a penalty upon that which was an offence before, it need not be laid to be against the form of the statute, because in truth the offence does not violate the statute. That this is the rule, was decided in the case of the Commonwealth v. Searle, 2 Binney 339. The only question then will be, was murder of the first degree an offence created by act of assembly. This depends on the second section of the act “ for the better preventing of “crimes &c.” passed 22d of April 1794. After reciting that the several offences which are included in the general denomination of murder, differ so greatly in degree of atrociousness, that it is unjust to involve them in the same ' punishment, it is enacted, that all murder which shall be perpetrated by means of poison, &c. &c. shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree, and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty, ascertain in their verdict whether it be murder in the first or second degree; but' if such person shall be convicted by co?ifession,'the Court shall proceed by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. Now this act does not define the crime of murder, but refers'to it as a known offence; nor so far as concerns, murder in the first degree, does it alter the punishment, which" was always death. All that it does, is to define the different kinds of murder, which shall be ranked in different classes, and be subject to different punishments. It has not been the practice since the passing of this law, to alter the form of indictments for murder in any respect; and it plainly appears by the act itself, that it ’ was not supposed any alteration would beTnade. It seems taken for granted, that it would not always appear on the face of the indictment of what de- ‘ gree the murder was, because the jury are to ascertain the degree, by their verdict, or in case of confession, the Court are to ascertain it by examination of witnesses. But if the indictments were so drawn as plainly to shew that the murder was of the first or second degree, all that the jury need do, would be to find the prisoner guilty in manner and form as he stands indicted. In the case of the Commonwealth v. Joyce and Mathias, (Oyer and Terminer, Philadelphia, February 1808, before C. J. Tilghman and Judge Smith) who Were convicted of the murder of Sarah Cross, it was moved in arrest of judgment, because the indictment did not charge the murder to have been committed by a wilful, deliberate,, and premeditated killing, as expressed in the act of assembly. But the motion was overruled, and the murderers executed. I am therefore of opinion that the indictment is good. The exceptions to the process remain to be considered. The precept to the sheriff is in the names of the president of the district, and two of the associate judges of the Court of Common Pleas, under their‘hands and seals. The style “ the judges to the sheriff greeting: In the name and by is, “ the authority of the Commonwealth of Pennsylvania, you “are hereby commanded &c.” It is objected 1. That’the style should have been “ the Commonwealth to the sheriff “ greeting.” 2. That the precept should have been issued under the seal of the Court of Oyer and Terminer. 3. That the sheriff should have been commanded to have the jurors selected and drawn in-the manner directed by law. 4. That the pheriff is not commanded to return petit jurors of the" county of Cumberland, nor does it appear on the record that they were *>f that county. These objections shall be considered in their order. 1. It is declared by the present constitution of Pennsylvania, art. 5. sec. 12, that “ the style of all process shall “ be, the Commonwealth of Pennsylvaniaand this provision is copied from the twenty-seventh section of the frame of government of 1776. The expression of the style being in a certain way, does not convey a precise idea. It is said by the 'counsel for the prisoner, that the process shall begin with these words, and in general, process issuing from Courts of record does begin so; and yet the substantial intent of the constitution would seem to be satisfied, if the command is given in the name and by the authority of the Commonwealth, in whatever part of the precept that command is expressed. In the same section of the constitution, where it is intended to direct the place in which particular expressions shall stand, it is clearly pointed out, “ all prosecutions shall “ conclude against the peace and dignity of the Common- “ wealth.” It is now thirty-seven years since the formation of the constitution of 1776, and during all that time the precepts for Courts of Oyer and Terminer-have been in the same form as this. Courts of Oyer and Terminer were held soon after the making of that constitution, so that the construction first put upon it was contemporaneous with the constitution itself, and no doubt adopted by some of those who were framers of it. A construction thus commenced and thus continued is entitled to the highest respect. The imperfection of language causes much uncertainty in writings which have been drawn up with the greatest deliberation. It is of great importance that the construction should be fixed as soon as possible, and when once fixed, it should be adhered to, unless palpably wrong, and productive of inconvenience. It is of no consequence in what part of the process the Commonwealth’ is introduced, so that the command is given in its name. This is done in the precept under consideration, and as it is agreeable to constant usage, I am of opinion that it is sufficient. 2. Much of what has been said will apply to the second exception. The usual form has been under the seals of the-judges. Precepts that issue or are supposed to issue from a Court of record during its session, are under the seal of the Court. But this is not the case with precepts for a Court of Oyer and Terminer. Emergencies may arise, requiring such CourtS’-to be held on a sudden. There are no particular periods appointed by law for the holding of them. The judges toay appoint them at their pleasure, and this appointment need not be made during the sitting of any Court. As for a Seal, there is no occasion for a' particular one for these Courts. The judges of the Supreme Court have no seal for the Courts of Oyer and Terminer held by them; and this is the casedn many instances with the judges of the Common Pleas.- There is no weight therefore in this objection. 3. The command to the sheriff is, that on a certain day he. cause to come before the judges twenty-four good and lawful men &c. This is the accustomed and the best form. 'Enteringinto details is dangerous, because something may be omitted, and it is unnecessary, because the sheriff must , be supposed to know his duty, and is bound to perform it. If he neglects any part of it, those whom it concerns may set the process aside. ; 4. The fourth and last exception is that it does not appear that the petit jury came from the body of the county, and if well founded it is fatal. The command to the sheriff is that he cause to come &c. “twenty-four good and lawful ■“men of the body of the county of Cumberland afore- “ said, then and there to enquire, present, do and perform “ such things as on behalf of the Commonwealth shall be “ enjoined them, and also a competent number of sober and “judicious persons, and none other, as jurors for the trial of “ all issues &?c.” Why the words good and lawful men, applied, to the grand jurors, are dropped, and sober and judicious persons put in their place as to petit jurors, I know not. The act of 29th of March 1805, does indeed direct that jurors' shall be sober and judicious persons; but the words good and laxvful men comprehend that and every other requisite. I do not think however that this1 change of phrase is material; but are the words “ of the county of Cumberland”, which follow “ good and lawful men”, connected by the copulative's and also, with the words next succeeding “ a com- “ petent number of sober and judicious persons &c.P” The descriptions of the two sets of jurors, are each complete and independent of the other; and the use of the copulative expressions is only to shew that the sheriff is commanded to cause to come &c. both one ju'ry- and the other. How this ‘ form crept in among us, I am at a loss to imagine. I have examined the printed entries of criminal proceedings, and find them quite different. They particularly mention that .each jury is to come from the body of the county. The return of the sheriff makes no mention of the county; he endorsed on the precept, “jury summoned as within commanded, as per “ list annexed.” Annexed is a list of the jurors mentioning the townships in which they reside, but nothing is said of the county. One of the townships is Allen. I know that there are townships of that name in several counties, and it may be so with others. If I were allowed to conjecture, I should have no doubt but that the whole jury was of 'Cumberland county; and were it a civil proceeding, I would try hard to get over the objection. But where life is at stake, I dare not endeavour to be ingenious. Having- attentively considered the precept, it appears to me, that without torturing it we cannot understand that the petit jury were to be of the county of Cumberland. I am therefore of opinion that the judgment was erroneous, and should be reversed. Ye ates J. I feel myself under the painful necessity of dissenting from the opinion delivered, in one point. Amongst the errors assigned to reverse the judgment upon the conviction on this indictment, none of them strike my mind with difficulty, except that which arises from the form of the precept to summon the juries. I do not conceive it to be necessary that it should be under a public seal. I know of no law which provides for a seal of the Court of Oyer and Terminer. The Judges of this Court, by virtue of.their offices, are justices of Oyer and Terminer and general gaol delivery in the several counties; and yet previous to the American revolution, as well as under the former constitution of 1776, and the present one of 1790, such precepts have issued under the hands and seals of the individual justices of the Court, and many convictions have taken place under them. But it is objected, that by section twelve of article Jive of the present constitution, it is provided, “ that the style of all “ process shall be, the Commonwealth of Pennsylvania; and “ all prosecutions shall be carried on in the name and by “ the authority of the Commonwealth, and conclude against “ the peace, and dignity of the same.” ' It is true, the precept here commences in the name of the president of the district, and two of the associate judges of the court; but it is directed to the sheriff, and in the name and by the authority of the Commonwealth of Pennsylvania expressly he was commanded &?c. This appears rather a verbal criticism than a substantial objection, and it weighs much with me that it pursues the form used in this Court until within these few years, under the constitution of 1790. ’ The greater difficulty remains to be got over. The sheriff was commanded that “ he should cause to come &c.” The objection is that though the sheriff is directed to summon the grand jurors of the body of the county of Cumberland, yet that direction does not extend to the traverse jurors. I think the words “ good and lawful men of the body and “ county of Cumberland'1'1 by fair construction may refer to the persons who are to be summoned and retumed-as jurors for the trial of all issues. The directions as to the two sets of jurors are connected together by the conjunctions and also, which refer to the body of the county from whence the sheriff is to cause those jurors to come. The sheriff has summoned them accordingly, and has obeyed the injunction of the writ by annexing a panel thereto in his return, containing the -Christian and surnames, additions and places of abode of the jurors. I feel every tenderness for unfortunate prisoners, that; they should be subjected to no difficulties which the law does not permit; but I do not feel myself justified , in pronouncing that there is a fatal error in this venire facias, which renders the judgment illegal. The exact correspondence of the precept which issued in the present instance, to other precepts issued by the Courts of Oyer and Terminer and general gaol delivery of this district, operates strongly on my mind, that I should not declare this venire facias to be illegal, unless upon the most solid and substantial grounds. I am strongly inclined to think that this venire facias for the court of Oyer and Terminer, has pursued the form used ’ by the judges of this court sitting at Oyer and Terminer; ■ but having no access here to those records, I would not be ■understood to express a confident sentiment thereon. I consider the indictment as'-inartificially drawn, but not as radically defective. It states the felonious, wilful and malicious assault of the prisoner upon Sampson, and that with a certain stone which he then and there in his right hand had and held, in and upon the right side of the head near the right temple of the said Sampson, then and there feloniously wilfully and of his malice aforethought did cast and throw; and that the prisoner with the stone aforesaid, so as aforesaid cast and thrown, the aforesaid Sampson, in and upon the right side of the head near the right temple of him the said Sampson, then and there feloniously wilfully and of his malice aforethought did strike penetrate and wound, giving to the said Sampson by the casting and throwing of the stone aforesaid, in and upon the right side of the1 head near the right temple of the said Sampson, one mortal wound of the length of &c., of which said mortal wound the said Sampson then and there instantly died. So that the charge is laid positively, and not by way of recital, and that the party died of the wound occasioned by the prisoner’s casting and throw-, ing of the stone; and the throwing of the stone, though inelegantly expressed, is couched in words of sufficient certainty. It has been further assigned for error, that the offence of murder of the first degree was created by the act “ for the “ better preventing of crimes, and for abolishing the punish- “ ment of death in certain cases,” passed on the 22d April 1794, (3 SmitRs Laws 187); and therefore the crime should have been laid in the words of the' act to have been done wilfully, deliberately andpremeditatedly, and the indictment is defective in not concluding against the form of the act of assembly. But it is clear that this law creates no new offence as to wilful and deliberate murder, nor annexes any new punishment thereto. Different degrees of guilt exist under the general crime of murder, which is therefore arranged under two classes of murder of the first and second degree. The uniform practice since the act was passed, has been to lay the offence as at common law; which has been decided by the judges, of this court sitting at Oyer and Terminer to be sufficient, in the case of the two negroes who were executed a few years ago for the murder of an ancient woman in the city of Philadelphia. The true distinction on this subject is drawn in Respublica v. Searle, 2 Binney 339. Upon the whole, imperious duty constrains ime tO declare, that there does not appear to me such error on this record, as would justify me in reversing. the judgment rendered against the prisoner. I entirely assent to the opinion, that too great nicety in proceedings is a reproach to the criminal law of any civilized country. Bh.ackenr.idge J. I concur with the Chief Justice in the fullest manner. Judgment reversed. On my coming to Philadelphia, and searching the prolhonotary’s office of the-Supreme Court, I find X have been mistaken herein.

Mr. Justice Woodward delivered the opinion of the court, It has been the policy of all the recent legislation relating to the boroughs of the Commonwealth, to subject the highways within their limits to the control of the municipal authorities as exclusively as was consistent with the duty of affording protection to the interests of individual citizens. By the 9th section of the Act of the 1st of April 1834, it was made the duty of the burgesses elected and qualified under the provisions of the act, “ to cause to be opened all streets, lanes or alleys laid out by order of the proper court.” By the general borough act of the 3d of April 1851, the corporate authorities were empowered to survey and lay out necessary roads, streets, lanes, alleys, courts and common sewers ; to provide for widening and straightening them ; .to prohibit the erection of any obstructions to such opening, rvidening and straightening, and to their convenient use; to regulate the roads, streets, lanes, alleys, courts, common sewers, public squares, common grounds, foot-walks, pavements, gutters, culverts and drains, and the heights, grades, widths, slopes and forms thereof; to require and direct the grading, curbing, paving and guttering of the side or foot-walks by the owners fronting on them, and to cause the work to be done on the failure of the owners to do it, with power to collect the cost of the work and materials, as claims are by law recoverable under the provisions of the acts relative to mechanics’ liens. A supplement to the statute regulating boroughs was passed on the 22d of April 1856, which provided for the opening of streets and alleys in any borough subject to that statute, by proceedings in the court of quarter sessions of the proper county, upon the petition of the burgess and town council; and this, has been the exclusive form pursued since the enactment of the supplement. The borough of Pottsville has not been made subject to the general borough laws; but the provisions quoted from the several statutes referred to indicate the general legislative intent to secure uniformity of plan and adequate municipal supervision in the establishment and maintenance of borough highways. Such an intent was manifested in the Act of the 22d of April 1856 (Pamph. L. 509), which authorized the town council of Pottsville, on the petition of citizens interested, to lay out and open all streets which the public convenience required. The Act of the 2d of April 1872, “relating to the opening and vacating of streets in the borough of Pottsville,” is to be read and construed in the light of the intent thus shown. It declares that “ all petitions to the Court of Quarter Sessions of Schuylkill county for the appointment of viewers to lay out or vacate any street, alley or lane in the borough of Pottsville, shall be first submitted to the town council for approval, and no viewers shall hereafter be appointed by the said court, or any court, upon any petition which shall not be so approved.” The petition for the appointment of viewers to report upon the expediency of widening Norwegian street was not approved by the town council, nor presented for their approval. Notice of the meeting of the viewers was served on the president of the council, the town clerk, the supervisor and the borough auditors, and accepted by them. This was deemed a sufficient compliance with the requirements of the statute by the court below, the acceptance of the notice being regarded as a waiver of their privilege to approve the petition before its presentation to the court. The language of the Act of 1872 was designed to have a larger scope than to confer a mere privilege on the town council, of which they could take advantage, or which they could waive at their option. Like the general borough laws, this act sought to secure uniformity and symmetry of system in opening and improving the highways of the borough. It imposed a duty upon the municipal officers the responsibility for the discharge of which they could not evade. They were bound to exercise their judgment in deciding on the propriety of the contemplated change. And until the result of their deliberations was made known, private citizens could not intervene, and the hands of the - court were stayed. The approval of the council was a condition precedent to the appointment of viewers. Under any of the accepted rules for the construction of statutes, this act was mandatory. It contained distinct negative words, and there is a class of cases which hold that whether a statute is to be regarded as directory or not is made-to depend upon the employment or failure to employ negative-words which import that an act shall be done in a particular manner or time, and not otherwise: Slayton v. Hulings, 7 Ind. 144; King v. Inhabitants of St. Gregory, 2 Ad. & El. 99; Bladen v. Philadelphia, 10 P. F. Smith 466. Perhaps Lord Mansfield’s rule in Rex v. Locksdale, 1 Burr. 447, is a better one, that whether a statute is mandatory or not depends on whether the thing directed to be done is of the essence of the thing required. Here, in order to confer jurisdiction on the court, the preliminary action of the town council was declared to be essential. There is another principle which is decisive in its application. In all cases in the courts where the authority to proceed is conferred by statute, and where the manner of obtaining jurisdiction is prescribed by statute, the mode of proceeding is mandatory, and must be.strictly complied with', or the proceeding will be utterly void: Dwarris on Statutes (Potter’s note) 29, and the cases there cited. The rule prescribed by the Act of 1872 has taken the place of all antecedent provisions regulating the streets of Pottsville, and this rule is the measure of the power and the duty of the council and the court alike. A distinction was suggested on the argument between a proceeding to “ lay out or vacate” and a proceeding to “widen” a street. Very judiciously, however,-the suggestion was not pressed. As the failure to present the petition for the appointment of the viewers to the town council was fatal to the whole proceeding, a consideration of the remaining assignments of error would be merely an abstract inquiry. Damages to the extent of $12,000 were .imposed by the viewers on the county, and this appeal was taken on her behalf. With an interest so significant as this involved, there would be lamentable inefficacy in a legal system under which a doubt of her right to intervene as a party could be seriously entertained. The order of the Court of Quarter Sessions confirming the report of viewers is reversed, the proceedings are quashed, and the petition is dismissed.

Opinion by Mr. Justice Stewabt, The plaintiffs are husband and wife who joined in this action to recover damages for injuries sustained by the latter under the following circumstances. The wife while walking on a public crossing extending from the south side of Allegheny avenue at the intersection of the avenue with Franklin avenue in the City of Philadelphia, between 7 and 8 o’clock on the evening of July 25,1915, was run into and knocked down by an automobile delivery truck belonging to the defendant company, which it is claimed was being negligently driven and that her injuries resulted in consequence of such negligence. The negligence alleged was not made the subject of dispute on the trial, nor was any other feature of the plaintiffs’ case that was developed by the evidence introduced. Had the case rested on plaintiffs’ showing, and that alone, there could be no possible reason for disturbing the verdict returned in their favor. The defense set up was wholly outside the circumstances detailed by plaintiffs’ witnesses, and denied nothing that had been averred; it was purely and distinctively affirmative in character, and the burden of establishing it rested on the defendant. In brief it was, that at the timé the collision occurred the defendant company stood in no relation whatever to the driver of the truck; that the latter was not an employee but a total stranger whu had improperly, without the permission or indeed the knowledge of the defendant, taken and appropriated the truck for his own use and pleasure while the regular driver thereof, defendant’s employee, was absent from the truck for a brief period while he left the truck standing in front of his home in the charge of a delivery helper, another employee who had accompanied the driver but who had no duties in connection with the management or control of the truck. The defendant offered evidence in support of its averments and upon this state of evidence, on one side and the other, the case was submitted to the jury with the result that a verdict was returned in favor of the plaintiffs. A motion for a new trial followed and also a motion for a judgment non obstante on the whole record. The former was discharged but the latter granted, and judgment for the defendant non obstante was entered on the ground, as stated by the court, “that the defendant had offered such positive testimony that to disregard it would be capricious; that the rule as laid down by the Supreme Court in the case of Lonzer v. Railroad (196 Pa. 613), is applicable, and the judgment should be entered for the defendant.” The appeal is from the judgment so entered. If the case would have warranted binding instructions for the defendant, then the court committed no error in entering the judgment, otherwise it was error. This is the only error assigned. So far as the liability of the defendant was concerned, the plaintiff’s case rested wholly upon a presumption. There was no direct evidence as to who was the owner of the truck that inflicted the injury, nor as to who was in charge of it when the collision occurred. There was evidence, however, that the truck bore the name of the defendant company. This was sufficient to establish not only a prima facies that the defendants were the owners of the truck, but also that it was then in charge of their servant or employee. This was presumptive evidence, and as has frequently been ruled, was quite sufficient to carry the case to the jury. As a presumption it was of course rebuttable, but this does not mean that it had any less probative force than it' would have had had it rested on direct evidence. It shifted the burden of proof as to this one issue so that the burden rested thereafter upon the defendant. Except as overcome by countervailing evidence produced by the defendant it stood as a fact in the case. What was set up was an alleged fact which, if proved, defeated utterly the plaintiffs’ prima facie case into which it had not even, remotely entered; it was entirely new matter, but it raised no question of conflicting testimony; it was at no time a question between plaintiffs’ witnesses and defendant’s, but simply a question of the sufficiency of the testimony adduced by the defendant to overcome the presumption on which plaintiffs’ whole case rested. No reason can be suggested why the general rule that commits the credibility of witnesses to the determination of the jury should not be applied in such case as it is where there is a conflict in the testimony. The case forms no exception to the general rule. The only question we have to consider is whether the evidence introduced by the defendants was of such conclusive and unimpeachable nature as would have justified binding instruction in its favor. Notwithstanding the presumption which arose in plaintiffs’ favor, it will not be pretended that the court would have been warranted in giving binding instructions in their favor, only, however, for the reason that the other facts which went to make the plaintiffs’ prima facie case depended on the credibility of the witnesses who testified to them, and that was a matter that could be determined only by the jury. Why should not the same rule apply here? It was made to apply in the quite recent case of Williams v. Ludwig Floral Co., 252 Pa. 140, a case on all fours with this. From all that there appears the testimony relied upon to overcome the plaintiffs’ prima facie case in that case was no less strong than here, but it came from living witnesses, and its value depended on their credibility, which was a matter within the exclusive province of the jury to decide. It was there held that there was no error in the court in refusing judgment non obstante. For the reasons stated discussion at length of the evidence submitted by the defendant is unnecessary, it needs only be said that it is not so exceptional in character as to take the case out of the operation of the general rule as here applied. The judgment is reversed and it is ordered that the motion for a new trial be reinstated to be disposed of as right and justice under the law may require.

Opinion by Mr. Chief Justice Moschziskeb, This is an appeal by the Commonwealth from an order of the court below distributing a fund raised by the sheriff through a sale of property held in the name of the Consolidated Rubber Company, a Delaware corporation. The property in question was sold under a fi. fa. sur judgment entered on a warrant of attorney accompanying a bond, which in turn accompanied a purchase-money mortgage given by the rubber company to Harper, the present plaintiff. The Commonwealth claimed state taxes settled against the corporation after the mortgage was recorded. The sheriff allowed this claim in full, thus giving it priority over plaintiff’s judgment for the principal debt and attorney’s collection commissions due under the terms of the before-mentioned bond and on another bond of similar kind, also held by him and accompanying a second purchase-money mortgage on the same premises; whereupon plaintiff excepted. The court below sustained the exceptions and ordered the fund, after payment of local taxes, costs, and attorney’s commissions, to be applied on account of the judgment debts due to plaintiff. Since the fund was inadequate to satisfy these latter claims, the Commonwealth received nothing; hence the present appeals. The attorney general contends that, under the Act of June 15,1911, P. L. 955, the State’s claim is preferred to those of plaintiff. The statute in question provides, by section 1, that “all state taxes......settled against any corporation.... . .shall be a first lien upon the...... property.....of such corporation.....; and whenever the......property of a corporation......shall be sold at a judicial sale, all taxes,......due the Commonwealth shall first be allowed and paid out of the proceeds of such sale, before any judgment, mortgage, or any other claim or lien against such corporation.” The court below held, on two grounds, that this case was not governed by the above act; first, because, in the present instance, the attorney’s fees alone would exhaust the proceeds of the sheriff’s sale, and “Even taxes due the Commonwealth may not be allowed as against attorney’s commissions” for collection stipulated for in bonds and mortgages. To sustain the position just stated, the court below cited Bauer v. Wilkes-Barre Light Co., 274 Pa. 165, which rules that receivers’ counsel fees and commissions are allowable as costs ahead of claims of the Commonwealth; but attorney’s commissions stipulated for in a warrant of attorney accompanying a bond, or. in a mortgage, are not costs, — they are part of the judgment and belong to the plaintiff: Mahoning County Bank’s App., 32 Pa. 158, 160; McAllister’s App., 59 Pa. 204, 208; Schmidt & Friday’s App., 82 Pa. 524, 527; Daly v. Maitland, 88 Pa. 384, 386; Calligan v. Heath, 260 Pa. 457, 462, 463. Consequently such commissions are to be preferred or postponed as the principal debt is preferred or postponed. The second ground stated by the court below, and the one on which plaintiff largely bases his argument, is that the rubber company, having given purchase-money mortgages at the time the land was deeded to it, had no more than an equity of redemption; that the real ownership of the property remained in plaintiff, as mortgagee, and, consequently, there was no judicial sale of “the property of [the present] corporation,” as required by the above-quoted act in order that the Commonwealth might have a preference; that, in any event, plaintiff’s estate in the land, under the mortgage accompanying the bond here sued on, could not be discharged as though it were a mere lien. In considering these propositions, we must look at the language of the statute, which, eliminating words unnecessary to our present consideration, reads, “Whenever the property of a corporation shall .be sold at a judicial sale, all taxes due the Commonwealth shall first be paid out of the proceeds before any judgment, mortgage, or other claim or lien against such corporation.” It is to be noticed that the statute does not say “Whenever the real estate of a corporation shall be sold,” but, “Whenever the property of a corporation shall be sold.” Whether the rubber company be viewed as the real owner of the land in controversy or merely as the possessor of an equity of redemption, whatever it had was “property”; and it is conceded of record that this property was, at the behest of plaintiff, seized and taken in execution by the sheriff as belonging to the Consolidated Rubber Corporation. Finally, the bonds and mortgages here involved, on which plaintiff bases his claims, were given by the rubber company itself; hence they come directly within the words of the act as either “judgments, mortgages, claims or liens against such corporation.” All this being manifestly true, the question may well be asked, how, under the circumstances, did the court below sustain its position that the Commonwealth’s claim for state taxes was not entitled to preference? Sweeney v. Arrowsmith, 43 Pa. Superior Ct. 268, is relied on as authority. There, a prior act, containing substantially the same terms as the Act of 1911, was construed and applied; but the facts were materially different from those at bar. The purchase-money mortgage, which was there given precedence over the Commonwealth’s claim for state taxes assessed against the corporation figuring in that case, was not executed by the delinquent corporation, but by one of its predecessors in title; the corporation had acquired the land subject to the mortgage. That this was a controlling fact is clearly indicated by the following passage from the opinion of President Judge Endlich, on whose opinion the Superior Court affirmed. He said (p. 271): “The liens postponed to that of the Commonwealth......are such as are created by or procured against the delinquent corporation, [and] it is very plain that neither the mortgage, incumbered with which the Pendora Park Company bought this land, nor the judgment on the sci. fa., was a lien created or obtained against the company In the present case, as previously said, the bonds and mortgages were given by the rubber company; they were its direct obligations, and, as such, are clearly within the class of liens over which the act gives preference to the claims of the Commonwealth. Again, in Sweeney v. Arrowsmith, supra, the court states (p. 270), as a ground of decision, that “It cannot be reasonably supposed......that one selling land to an individual [which was the fact in that case] and taking a mortgage upon it from him, for part of the price, should foresee or actually contemplate the eventuality of its passing at some future time into the hands of a corporation, a failure of that corporation to pay its state tax upon capital stock, and the impairment, possibly the wiping out, of the security for the unpaid purchase money by the enforcement of a lien filed therefor by the Commonwealth and taking precedence of the mortgage.” Of course the above reasoning does not apply here, because this is not such a case as outlined by Judge Endlich ; on the contrary, in the present instance the land passed directly from plaintiff to the corporation and, when taking the mortgage from the latter (in August, 1921), plaintiff knew that the Act of 1911 in express terms gave a preference to the Commonwealth for state taxes which might in the future be assessed against the mortgagor. It is true that in Sweeney v. Arrowsmith, where the mortgage itself was foreclosed on a sci. fa. instead of, as here, the premises being taken on an ordinary execution as the property of the mortgagor, Judge Endlich, after reaching the conclusion that the facts involved did not bring the Commonwealth’s claim within the provisions of the Act of 1911, does go on to set forth the doctrine, also invoked by the court below in the present case, that a mortgage is a conveyance of the land, and, therefore, the sheriff’s sale of the mortgaged premises was a sale of the mortgagee’s not the mortgagor’s property. We cannot agree, however, that this doctrine can properly be held to apply against the Commonwealth under the circumstances at bar. It must be admitted that there is great divergence of view, not only in Pennsylvania, but in other jurisdictions, as to whether a mortgage should be viewed as creating an estate in the land or simply a lien in favor of the mortgagee. The latest judicial utterance on the point will be found in Shields v. Pittsburgh, 252 Pa. 74, 76, where it is stated: “In Pennsylvania, a mortgage is, both in law and in equity, only a security for the payment of money and passes no title to the land, — the mortgagor is the owner of the land”; and it is not without significance in the present case that this view is uniformly borne out by our tax laws, which, from the Act of June 11, 1840, P. L. 507, have always expressly classed mortgages as personal estate. Professor William H. Lloyd, in a recently published article (73 U. of P. Law Rev. 43) discusses all of the leading Pennsylvania cases on the subject in hand, and states the conclusion that, while many of our decisions are difficult, if not impossible, to be reconciled (a view which seems to be supported by a reading of the cases), the title to the mortgaged premises may be accounted in the mortgagee “as between the parties” to the transaction represented by the mortgage, “so far as it is necessary to render the instrument effective as a security,” but “as to all other persons [with some special exceptions ] the mortgagor is regarded as the owner, and the mortgage as a mere encumbrance and accessory to the debt”; which summarizes the predominant effect of our decisions. The only other recent attempt at a review of the Pennsylvania authorities which we have found was made by the late Judge McPherson, in the case of In re Lukens, 138 Federal Rep. 188, 191, where he said: “It may perhaps be safely concluded that a mortgage in Pennsylvania is held to be either an estate or a lien, as the equities of the particular case may require, but that the general rule holds it to be a lien only, and not an estate.” Under the Act of June 16, 1836, P. L. 777, section 86, “In the distribution of the proceeds from sheriffs’ sales, the court......is empowered to determine disputes according to law and equity” (Britton’s App., 45 Pa. 172, 173); while this rule may apply where a dispute exists between ordinary persons on questions of precedence in the distribution of a sheriff’s fund, yet it has no application to the rights of the Commonwealth where, as here, the State is entitled to precedence under the express provisions of an act of assembly. ‘ In Shoyer v. Comet O. & R. Co., 284 Pa. 189, 193, we recently said, on the subject of the “priority of state......tax liens” and the right of the legislature to give them preference over other claims, that “Our first thought must always be the preservation of government [and the] enforcing of lawful means necessary to successfully carry it forward; the means should always be available for its continued security, not hindered or prevented by lesser rights which may suffer because of such enforcement. The common good is superior to individual or private rights; [the State] therefore has a natural equity [and is] fairly entitled to first rank in the list of claims that may be had against any or all property. The protection which individuals receive at the hands of the government is compensation for any so-called impingement of right.” This disposes of any possible question of equities between the Commonwealth and plaintiff; but, in addition, plaintiff, as heretofore stated, put himself in the situation of a mortgagee with full knowledge that his mortgage, or any judgment for the debt secured thereby, was, by the express words of the Act of 1911, postponed to state taxes which might be assessed in the future against the corporation from which he took the mortgage. Such being the case, plaintiff has no right to complain on equitable grounds. Here, a corporation purchased real estate which,, though mortgaged by it to plaintiff, it held title to and had the right, according to “the practice in this state,” “to retain possession and receive the rents and profits of ......until dispossessed by forcible proceedings”: Erny v. Sauer, 234 Pa. 330, 333. This ownership, classify it as we may, was “property,” and that property, while in the possession of the corporation, was levied on by the sheriff, at the behest of plaintiff (without any effort on his part to reenter) and sold as the property of the corporation, on a judgment against the corporation; thus bringing the case directly within the provision of the Act of 1911, that, “whenever the property of a corporation shall be sold at a judicial sale,” state tax claims shall be preferred to mortgages and other debts of the corporation. The case is not one, like some others in our books, where, by treating the mortgage as creating an estate in the land, rather than as a lien, and allowing the operation of certain general principles of law, the interest or claim of the mortgagee can be saved from subordination to other rights; for, under the Act of 1911, the Commonwealth is entitled to be paid “out of the proceeds of such sale before any judgment, mortgage, or any other claim or lien against such corporation.” “Any” means “all” (Glen Alden C. Co. v. Scranton, 282 Pa. 45, 48), and therefore comprehends all mortgages against such corporation, be they for purchase money or otherwise. In addition to the fact that the word “any” is comprehensive, in the sense just stated, so that, from this stand point, it makes the language. of the statute include a mortgage like the one at bar, it will be observed, the act before us in effect ordains that, on the distribution of a fund raised by the judicial sale of property of a corporation, all mortgages thereon given by the corporation shall be considered of the same category as “any other claim or lien against such corporation,” for the purpose of their postponement to claims for taxes due the Commonwealth; and this applies with full force when, as here, the premises have been taken in execution as the property of the corporation for the purpose of enforcing payment of a debt secured by a mortgage of the corporation. Since our cases show that debts secured by mortgages are, under many circumstances, lawfully susceptible of classification as mere liens, and since it is a matter of common knowledge that they are generally so considered, the right of the legislature thus to treat them, for a named purpose, on a given state of facts, cannot be doubted; therefore, the legislative classification, which we have in this case, of mortgages as liens subject to the same rule of subordination which the statute lays down for “any other claim or lien,” is, in itself, enough to dispose of the argument that plaintiff’s mortgage constituted an estate in the land which could not be displaced as though it were but a claim of the lien class. The case before us falls squarely within the act of assembly invoked by the Commonwealth, and, under it, the State’s claim for taxes is entitled to precedence; the court below erred in deciding otherwise. The order appealed from is reversed and the record is remitted for distribution in accord with the views here expressed. Manufacturers’ & Mechanics’ Bank v. Bank of Penna., 7 W. & S. 335; Britton’s App., 45 Pa. 172, and cases there cited; Nerpel’s App., 91 Pa. 334; Allentown’s App., 109 Pa. 75; Peebles’s Est., 157 Pa. 605. Rickert v. Madeira, 1 Rawle 325, 328; Presbyterian Corp’n v. Wallace, 3 Rawle 109, 128; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411, 419; Lennig’s Est., 52 Pa. 135, 138; Knoll v. N. Y., etc., Ry. Co., 121 Pa. 467, 473; Shields v. Pittsburgh, 252 Pa. 74, 76; Jackson v. Pittsburgh, 36 Pa. Superior Ct. 274, 280; and other cases mentioned in the Lloyd article, supra.

OPINION OF THE COURT HUTCHINSON, Justice. Transamerica Insurance Company (“Transamerica”) and Hartford Accident and Indemnity Company (“Hartford”) appeal by allowance a Superior Court order which affirmed the Court of Common Pleas of Lehigh County in this declaratory judgment action. Common Pleas held that both appellants had issued liability policies whose coverage required them to provide appellee both defense and indemnifi cation for an Illinois plaintiffs products liability action in Illinois. Plaintiff brought that action for cancer which she claimed to suffer as a result of appellee’s manufacture and sale of the drug diethylstilbestrol (“DES”) to her mother during pregnancy. Because the Illinois plaintiff, an indispensable party, was not joined, we reverse for lack of subject matter jurisdiction. Appellee, Vale Chemical Company (“Vale”), filed this action to determine whether appellant insurance companies were required to defend the action filed against Vale in Illinois and to indemnify it for liability. In Illinois, Sandra Smith had sued Vale and all other manufacturers of the drug DES for damages, after she was diagnosed as suffering from vaginal cancer allegedly caused by her mother’s use of DES during pregnancy. Manufacturers’ Casualty Insurance Company, appellant Transamerica Insurance Company’s predecessor in interest, provided liability coverage for Vale at the time Ms. Smith’s mother took DES. Hartford covered Vale at the time Smith was diagnosed as having cancer. Vale brought this action under our Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, to determine whether its insurance contracts with appellants required them to defend Vale and indemnify it against Smith’s claim. Common Pleas held that both companies were required to provide a defense because there was scientific evidence to show that Smith suffered bodily injury at the time of her mother’s exposure to DES and also at the time the cancer was diagnosed in her body, some twenty-five years later. Superior Court affirmed that decision on a different theory. It held there was continuous exposure to the effects cf DES for those twenty-five years and that all insurers who cover a party during the period of exposure are responsible for providing a defense. In so doing, Superior Court expressly adopted the “multi-trigger” theory of liability. See, e.g., Keene Corp. v. Insurance Company of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982); Eli Lilly v. Home Insurance Co., No. 82-0669, (D.D.C. April 12, 1984), appeal pending, No. 84-5391 (D.C.Cir.); A.C. & S. v. Aetna Casualty and Surety Co., 576 F.Supp. 936 (E.D.Pa.1983). We granted Hartford’s and Transamerica’s petitions for allowance of appeal and now hold that Common Pleas lacked jurisdiction to issue a declaratory judgment on this record. Therefore, we vacate Superior Court’s order and remand to Common Pleas with directions to dismiss appellee’s suit for lack of subject matter jurisdiction. At oral argument, all parties were directed to file supplemental briefs concerning a jurisdictional issue not raised in any court below: whether under our Declaratory Judgment Act the court can hear the case if the injured party is not joined. Our Declaratory Judgments Act states: § 7540. Parties (a) General rule. — When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. 42 Pa.C.S. § 7540. In Carlsson v. Pennsylvania General Insurance Co., 417 Pa. 356, 207 A.2d 759 (1965), we were presented with an identical issue. There, appellants sought to have their insurance company defend personal injury claims against them and to pay claims under the policy. We held that the failure to join the plaintiffs in the personal injury claims was a fatal defect, citing the predecessor to 42 Pa.C.S. § 7540 and Keystone Insurance Co. v. Warehousing Equipment Corp., 402 Pa. 318, 165 A.2d 608 (1960). In Pleasant Township v. Erie Insurance Exchange, 22 Pa. Commonwealth Ct. 307, 348 A.2d 477 (1975), Commonwealth Court summarized our precedents on this issue: Our Supreme Court has consistently held that where claims are asserted against an insured, the persons asserting the claims are indispensable parties in a declaratory judgment action on the issue of coverage between the insured and the insurance carrier. The failure to join a claimant whose interests would be affected has been held to be fatal error. 22 Pa. Commonwealth Ct. at 311, 348 A.2d at 479-80, citing Carlsson, supra; Keystone, supra; and Mains v. Fulton, 423 Pa. 520, 224 A.2d 195 (1966) (footnotes omitted). See also Standard Pennsylvania Practice 2d § 66.45. All parties argue that the failure to join the tort plaintiff is not fatal to this action. Because appellants are willing to share the cost of providing a defense, pending resolution of who has that obligation, they state that the Illinois plaintiff has no conceivable interest in the outcome of this suit. They argue that the obligation to defend may be broader than the obligation to indemnify the insured for its losses under their policies. However, they concede, as they must, that the plaintiff has an interest in seeing that an insurance company pays the judgment against its insured. Whatever the merits of that distinction, the record here shows that both obligations of the insurers were involved. Appellee Yale’s complaint asks that the court enter a judgment ordering both appellants to defend the aforesaid action instituted by Sandra Smith against the Plaintiff and in the event of an award of damages to Sandra Smith and against the Plaintiff to pay the amount of said damages. Complaint, filed February 9,1981. In addition, Manufacturers and Transamerica, in their motion for summary judgment, asked the court to declare that their policy provides no applicable coverage for the underlying lawsuit instituted by Sandra Smith, but on the contrary, any such duty of defense and indemnification is solely the responsibility of the Hartford. Motion for Summary Judgment of Manufacturers’ Casualty Insurance Co. and Transamerica Insurance Co., filed July 6, 1982. See also Motion for Summary Judgment of Hartford Accident and Indemnity Co., filed October 4, 1982. Thus, because the action sought a declaration about coverage in this case, it is apparent that Smith had an interest in this declaratory judgment action when it was filed. Alternately, the parties argue the issue posed in this record is of great public concern because a large number of similar lawsuits are currently pending against appellee Yale and other manufacturers of DES. Therefore, they say that we should decide the insurance coverage questions in order to settle an important issue which is likely to recur. This argument is self-defeating. Appellee’s supplemental brief on the jurisdictional issues states: The Smith case is one of more than 140 suits that have been filed against Vale alleging DES-related injuries; of those, approximately 40 are pending, and more undoubtedly will be filed. Many are almost identical to the Smith case, involving the same insurers, the same policy language, and the same alleged injuries. Appellee’s Supplemental Brief at 6 n. 3. If this is indeed the case, and the parties would like to determine all of Vale’s insurance companies’ responsibilities in this case, it would have to be dismissed because the record does not indicate that all insurance companies representing Vale have been joined. Moreover, the affected plaintiffs have also been left out. The brief states that many of these cases are similar to this one; this implies, to us, that there are other carriers involved. Their rights and those of the plaintiffs in these cases would certainly be prejudiced by the result in this action. Thus we again lack indispensable parties even if we held that joining this particular tort plaintiff was unnecessary. No adequate reason has been advanced for us to ignore the statutory requirement that all interested parties shall be joined before a declaratory judgment can issue. While we recognize the importance of the question involved in this matter, importance alone does not confer jurisdiction where it does not otherwise exist. Essential to the adversary system of justice, and one of the basic requirements of due process, is the requirement that all interested parties have an opportunity to be heard. Thus, all parties whose interest will necessarily be affected must be present on the record. Smith, the particular tort plaintiff involved in this case, is not present. Nor are any of the other plaintiffs seeking damages, for injuries suffered as a result of the use of DES, represented as parties on this record. Appellants’ argument amounts to a request to convert this case into a kind of class action in which they would represent a plaintiff class of all insurance carriers similarly situated, appellee would represent the interest of all manufacturers, and all tort plaintiffs would become parties represented by amicus. For obvious reasons, we reject such an attempt first presented at the appellate level. See Pa.R.C.P. 1701-1716. Because the jurisdictional requirements of the Declaratory Judgments Act with respect to joinder of indispensable parties have not been satisfied in this case, the judgments below must be vacated and the complaint dismissed. The order of Superior Court is reversed and the judgment of the Court of Common Pleas of Lehigh County is vacated and the case dismissed for lack of subject matter jurisdiction. McDERMOTT, J., files a concurring opinion. . Pa.R.C.P. 1032(2) allows a court to raise sua sponte issues of subject matter jurisdiction and failure to join an indispensable party. To the extent that footnote four in Friestad v. Travelers Indemnity Co., 452 Pa. 417, 421 n. 4, 306 A.2d 295, 297 n. 4 (1973), implies otherwise, it is disapproved as inconsistent with our other cases on that question. . The supplemental briefs ambiguously indicate that Vale has been dismissed from the Smith lawsuit. This is irrelevant to a determination of whether there was jurisdiction over this matter when it was first filed. It also renders the issue of which of Vale’s insurers should provide coverage in Smith’s action against Vale moot. Although the Declaratory Judgment Act relaxes the traditional requirement that a case or controversy must involve an existing dispute, it does not, and could not, permit the entry of an advisory opinion. See 42 Pa.C.S. § 7532; In Re: Johnson’s Estate, 403 Pa. 476, 171 A.2d 518 (1961); In Re: Kariher’s Petition (No. 1), 284 Pa. 455, 131 A. 265 (1925). . The parties make only a bald assertion that the coverage issue is otherwise likely to escape review, a requirement if an exception to the ordinary rule of mootness is to be made. See Weist v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362, cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1975). While they present arguments that the case should be heard because the issues may arise again, the forty pending cases illustrate that, given the proper vehicle, this issue can be determined in one of those cases. . Having determined that we lack jurisdiction, we do not address the reasoning in Crown, Cork & Seal, Inc. v. Aetna Casualty & Surety Co., 16 Pa. D & C 3d 525 (Ct. of Com. Pl. of Phila. Cty. 1980), and Doe v. Johns-Manville Corp., 15 Pa. D & C 3d 135 (Ct. of Com. Pl. of Bucks Cty. 1980), adopting the multi-trigger theory in asbestosis cases where the fact of continuous exposure is clear. . The dismissal of this case is based solely on the failure to join the proper parties. It is clear that if personal jurisdiction of the Illinois plaintiff could have been had, her joinder would have given the court jurisdiction, under our Declaratory Judgments Act, to entertain this action.

Opinion by Mr. Justice Moschzisker, Horace F. Whitman, by his will dated in 1904, gave the residue of his estate in trust to pay the net income therefrom to his wife for life, and upon her death to his daughter (now Lillian W. Woolman) for life, “free from the control of any husband she may now have or hereafter take”; he then provided, “From and immediately after the decease of my said daughter.....to divide the principal.....to and among the child or children of my said daughter......in equal shares, the shares of any male issue or children......to be paid to them on their respectively attaining the age of 21 years,” and the shares of female children to be held “upon the like trusts hereinabove set forth and declared for my said daughter, and upon the decease of any of my said grandchildren who are daughters of my daughter......to divide and pay over such share in my estate as is herein given to such grandchildren......to and among their lawful issue or children”; finally, he provided, “In the event of my said daughter......dying not leaving any lawful issue or children her surviving, then I order and direct my said trustees......to divide and pay over the said principal of my residuary estate as follows (naming three existing charitable institutions to take $5,000 each, and the balance to go to Yale University). The testator died January 9, 1911, leaving the widow and daughter named in his will; at that time the daughter was a married woman, but had no children. On September 2, 1912, the widow died, and on January 31, 1913, the daughter had a female child born to her. The trustees under the testator’s will filed an account, and upon its, audit his daughter contended that the trusts should be declared terminated and the estate awarded to her absolutely, on the ground that in the provision for the testator’s offspring the rule against perpetuities had been infringed in such a manner and to such an extent that upon the death of his widow the whole limitation failed and an intestacy resulted. The Orphans’ Court refused the contention, saying- that, even though the gift over to the children of testator’s granddaughters was too remote, it was “not at present concerned with the effect of this violation, as there is in existence a life estate (that of his daughter) which vested at his death.” The opinion then goes on to state: “The general doctrine of all our cases is that the validity of a life estate or succession of life estates, at the death of the testator, or during a life 'or lives in being and 21 years thereafter, is not affected by reason of' ultimate limitations which transgress the rule against perpetuities (Lawrence’s Est., 136 Pa. 354; Goddard’s Est., 198 Pa. 454; Gray on Perpetuities, Sec. 247-8)......, and this doctrine is recognized as the rule even-where the wills under discussion were held to be exceptions to it [Johnson’s Est., 185 Pa. 179; Gerber’s Est., 196 Pa. 366; Kountz Est. (No. 1), 213 Pa. 390]; in those cases the main and dominant purpose of the testators was to keep their estates entire beyond the lawful period, and the creation of the particular estates was merely' a scheme to carry that purpose into effect......A careful reading of the present will discloses that the creation of the......estates for his wife and daughter was...... (the testator’s) dominant purpose......As we cannot see that......the unlawful provision (for his daughter’s female offspring and their issue) is the main and dominant purpose of his will, there is no reason why the present case should be treated as an exception to the general principle that life estates anterior to a void limitation should be upheld.” After considering the arguments presented by counsel for the appellants, we are not convinced of error. In addition to what has been so well stated by the court below, it is to be noted that the will contains a limitation over, on the death of the testator’s daughter without children, to several existing charities, and that this provision is an alternative limitation not in any manner dependent upon the one for the testator’s granddaughters and their issue; therefore, even though it be conceded that the latter provision is void under the rule against perpetuities, this does not affect the limitation over (Stone v. Bradlee, 183 Mass. 165, 171). The text writers and authorities (English and American) seem to agree that where an independent limitation over upon the death of a life tenant without children follows a gift to such children, if any, and the gift to the children contains provisions which make it void under the rule against perpetuities, the limitation over is separable and will be given effect (Lewis on Perpetuity, p. 501; Seaver v. Fitzgerald, 141 Mass. 401, 403; Gray on Perpetuities, pp. 233, 236; Leak v. Robinson, 2 Merivale 363, 393; Evers v. Challis, 7 H. L. C. 530). Here, the provision for the charities stands by itself, ready to take immedi ate effect should the testator’s daughter leave no children at her death, and this distinguishes the present case from Johnson’s Est., Gerber’s Est., Kountz’s Est., supra, and Coggins’ App., infra, relied upon by the appellants, and is sufficient to sustain the trust, at least, till the present life estate comes to an end. Aside from the aspect of the case which we have been discussing, the Pennsylvania rule is as stated by the court below, i. e., that a valid limitation which is associated with, but practically possible of separation from, one that transgresses the rule against perpetuities, will not be struck down, unless the will as a whole not only shows the void limitation, but that the general scheme and dominant purpose of the whole disposition in question were to tie up the testator’s estate beyond the time allowed by law; when such is the case, however, the provision falls in its entirety. While the last part of this rule is freely criticised by some text writers, yet the cases cited in the opinion of the Orphans’ Court show it to be implanted in our law; but we all agree that it has no application to the will at bar. Here, the dominant intent of the testator, after providing for his wife, was to provide for and duly protect his only child for life, and the subsequent limitations to his daughter’s offspring were secondary to this main purpose; although in these latter limitations the testator may have infringed the rule against perpetuities to some extent, yet, it is clear, when we consider the provision for his grandsons, his attempt to create a separate use trust for his daughter and her daughters, and the general limitation over on the death of his daughter without children,- that his mind was set on these things, and not on creating or working out a general scheme to' circumvent the rule against perpetuities. Under such circumstances, a void limitation is viewed as merely incidental; it may fall, but it cannot alter or destroy a precedent life estate. Coggins’ App., 124 Pa. 10, cited by the appellants, is not referred to in the opinion of the court below; but it is essentially different from the case now before ns. In the testamentary provision then under consideration there was no independent limitation over in the event of the death of the life tenants without children, but simply cross-remainders between the life tenants, and these were to be held upon the same trusts which were there declared void; furthermore, the question discussed seems to have been the invalidity of the future limitations, and not whether the life estates should be sustained. The trust in that case was a simple one, and the testator’s children who took both the life estates and cross-remainders were his sole heirs at law, so there was no practical reason for maintaining the prior estates; more than this, although not so stated in the opinion, the will and codicil then before the court showed a manifest purpose to use the life estates in order to construct a general scheme which would enable the testator to tie up his property for the benefit of his grandchildren and great-grandchildren beyond the time allowed by law. On the whole, we feel that Coggins’ App. is in line with the other cases treated in the opinion of the court below as exceptions to the general rule. Hillyard v. Miller, 10 Pa. 326, cited by the appellants, was an instance of illegal accumulation, adjudicated on its own peculiar facts, and nothing in the opinion has any proper relation to the present case. In Smith’s App., 88 Pa. 492, all the limitations were struck down because a transgression of the rule against perpetuities appeared; but in Coggins’ App., supra, p. 30, the soundness of that decision is questioned, and in Lawrence’s Est., supra, pp. 365-6, we say that it was “wrong.” In Rhodes’ Est., 147 Pa. 227, the Orphans’ Court held 'that there was no violation of the rule against perpetuities, and the general statement in its opinion, which appears on page 230 of the report, as to the necessary entire failure of any limitation which offends against this rule, is merely dicta; what is said at page 231, however, to the effect that the life tenant was not in a position to raise the question of the invalidity of limitations subsequent to her estate, is applicable here. Finally, none of the cases upon the subject which we have before us is precisely similar to the one at bar, but the law therein announced either actually sustains or is consistent with the rule followed and correctly applied in the present instance by the learned court below. All that we here decide is that the trust is good for the life of the appellant, Lillian W. Woolman; exactly how far the other limitations are effective can be determined when she departs this life. Since we have adjudged that Horace F. Whitman did not die intestate, the appeal of the personal representative of the estate of his widow, on her claim upon his estate under the intestate law,' need not be considered; it is dismissed. The decree of the court below is affirmed; the costs to be paid out of the estate of the testator.

Tjxghman C. J. The record contains two bills of exceptions, the first relating to four several papers offered in evidence by the plaintiff and admitted by the Court, the second to the charge of the Court. These shall be considered in their order. 1. The first paper objected to was a copy of the act of assembly, printed by the public printer under the direction of the secretary of the Commonwealth, who was authorized by the legislature to compare the copy with the original roll. By the law of England, the copies of the public laws printed by the king’s printer, are read in court, not as evidence, but as bringing to the mind of the Court, a matter ' which every man is supposed to know, because every man is a party to the public laws, 'having consented to them by his representative. But a private law is to be proved as any other matter of fact. This distinction between public and private laws, is by no means satisfactory, when applied to the actual state of the world. Whatever reason there might be for supposing that every man knew the law in ancient times, when laws were few and short, and at the end of each session a copy of the laws was sent to the sheriff of every county, who made public proclamation of them at the county court, and suffered the people to read them and take copies at their pleasure, 1 Bl. Comm. 185, yet there is no ground for this supposition at present, when laws are numerous, long and intricate, when they are not published by proclamation, and when in fact, neither the people, nor even the judges, have any opportunity of knowing them but from printed copies. It is for this reason that it has been usual for the legislatures of the several states to have the laws printed by authority. Confidential persons have been selected to compare the copies with the original rolls, and superintend the printing. The object of this provision was to furnish the people with authentic copies,- and from their nature, printed copies of this kind, either of public or private laws, are as much to be depended on as the exemplification, veri £ed by an officer who is the keeper of the record. In Eng- _ land there is no provision by parliament for the publication of their laws. They are printed by the king’s printer. There ought therefore to be a difference in the law of evidence respecting printed copies in the two countries. And we find that when the subject has been preséñted to the minds of the American judges, they have not failed to be struck'with the difference. In the case of Thomson v. Musser, 1 Dall. 463, this Court admitted the printed copy of a Virginia act of assembly. This decision abolished the distinction between public and private acts, because ,it could not be supposed that the people of Pennsylvania were acquainted with the public laws of Virginia, having never made or consented to them either in person or by representative. In Young v. The Bank of Alexandria, 4 Cranch 388, the subject was brought before the Supreme Court of the United States, when Chief Justice Marshall expressed his opinion, that whether the law were public or private, yet being printed by the public printer, by order of the legislature, agreeably to- a general act of assembly for that purpose, it must be considered as sufficiently authenticated. He declared indeed at the same time, that the Court would not prevent counsel from arguing the point, if they.thought they could support - the'contrary opinion, but the counsel declined the attempt. -This opinion of Chief Justice Marshall appears tome to be perfectly correct. I am for admitting the printed copies, authorized by the legislature either of this or any other state, whether the laws be public or private. The two next papers received in evidence, I shall consider together, as they fall within the same principle. One was the scheme of a lottery signed by John Biddis, the other a bond of John Biddis with securities. Neither the execution of the bond, nor the signature of John Biddis to the scheme, was proved; but it was proved that these papers were found on the file of the secretary’s office, and copied by the clerk into the book of executive minutes, and that there was no other scheme of Biddis1 s lottery to be found in the office. In an action on the bond, it would have been necessary to prove its execution. As to the scheme, it was not essential that the name of Biddis should be signed at all, and therefore this paper being found in the office, and no other paper of the kind being" there, the presumption was veiry strong that it was the scheme submitted to the govern^ in compliance with the act of assembly. With respect to the bond, the presumption was equally strong of its having been 'deposited by Biddis, and if deposited by him, I take it to be immaterial in the present action whether he executed it or not. For if he had deposited a forged bond, and thus imposed on the governor, he would not be permitted to avail himself of this plea, in bar of actions for the recovery of prizes in the lottery which he had proceeded to draw. The fourth paper was clearly evidence. It was a journal of the drawing of the lottery verified by the oath of the per- ■ son who kept it. Whether the lottery was legally drawn was another question. But it was incumbent on the plaintiff to prove, that his ticket drew the prize of 10,000 dollars; and there could be no better way of proving it than by the oath of a person who attended the whole drawing, and kept •a written account of the proceedings. The exception to the charge of the Court remains to be ‘considered. The judge was of opinion, that the act of assembly having confined the license to vend the patent rights to the term of eighteen months, no ticket could legally be sold after eighteen months, because the sale of tickets was the mode adopted for the sale of patent rights; yet he charged, that it was immaterial in the present action, whether the sale of the ticket was within the eighteen months or not, because the plaintiff having come fairly to the ticket, the defendant should not avail himself of his own fraud in selling tickets contrary to law. In the first place, as the legality of selling or of purchasing these tickets depended on an act of assembly, it was the fault of the plaintiff to purchase; nor could any fraud which the defendant could practice, prevent the plaintiff, if he had used due caution, from knowing that the eighteen months limited by law had expired. But were it otherwise, the fraud of the defendant is not sufficient to support this action, which is founded on the assumption of the intestate. This issue is joined on his assumption, and the judgment is against his estate. So that to support the action on the ground of fraud in the defendant, would be to punish one man for the offence of another. It was urged also in support of the action, that the limitation of eighteen months was but a circumstance, against which the Court may relieve by extending the time. I cannot think so. It is a cir Cumstartce to be sute, but a'very material one, a substantial part of the terms imposed, by the legislature, which it is not in the power f any "court to alter. But it has been contended, that granting the drawing of this lottery to have been contrary to laW,yet the action is maintainable? because by the act of 17th"February 1762, a penalty is imposed on both buyers and sellers of lottery tickets, and by the act of 21st March 1806-it is enacted, that “in all cases where áreme- “ dy is provided, or any thing directed to be done by any “ act of assembly, the directions of the said act shall be strictly “ pursued, and ho penalty shall be inflicted, or any thing “ done, agreeably to the provisions of the common law in “such cases, farther than shall he necessary to - carry such “ act into effect.” The construction contended for by- the plaintiff, gives this provision a very unnecessary and inconvenient extent, and one which is greater than the words require. The act of February 1762, not only inflicts penalties on the buying and selling- of tickets, but expressly .enacts, “ that all lotteries whether public or private are “ common and public nuisances, and against the common “ good and welfare of this province.” So that to give efficacy to this provision, it is at least useful to call in that principle of the coihmon law, which forbids the courts to take cognizance of an action founded on a flagrant breach of law. This is not the inflicting of a penalty, or doing any thing different from or mote than is enacted. It is but a negative interference, to prevent a public injury, and to carry the law more effectually into operation. The construction has been settled already- in this court, in the case of Primer v. M-Con- - nell, and in the District Court in the case of Barton v. Hughes. In both these cases, it was decided that an action could not be supported for the price of a ticket in a lottery, which was not authorized bylaw. I am of opinion upon the whole, that there is no error in the points mentioned in the first bill of exceptions, but that there is error in the charge of the Court, for which the judgment should be reversed, and a venire facias de novo awarded. Yeates J. and Brackenridge J. delivered their opinions, in all points concurring with the Chief Justice. Judgment reversed.

The opinion of the Court was delivered by Gibson J. — It is impossible to support the judgment o& this writ, which is a scire facias to revive a judgment against the administrator of a joint defendant, who died first; for it is clear law that a plaintiff who has recovered against a number. can have execution only against the survivors, the goods of .those who have died being dischatged. But although the judgment is to be executed against the persons or chattels oniy of the. survivors, it is otherwise as to the land : that continues bound by the lien ; which under the Stat. Westm. 2d is rendered effective by a s'cire jaciás, against the survivors and the heirs and terre-tenants of those who have died, to shew cause why the plaintiff should not have execution of the lands of the original parties. The English mode of proceeding on this Statute, is pointed out by Sergeant Williams in a note to Trethewy v. Ackland et al. 2 Saund. 51, a. According to our practice, as lands are assets for the payment of debts, so far as to be subject to sale on a judgment against the personal representative, it seems the executor or administrator is substituted for the heir, .and the terre-tenant is not formally made a party on the record, but permitted to come in on notice, and defend pro interesse suo. But as the questions made below, might again be agitated in a pioceeding against the survivors, or against the land, it is proper to decide them. It is scarcely necessary, however, to decide that the original judgment, although rendered for fees collected by Lebo on executions in his hands, bore interest: by our Act of Assembly, interest is an incident of every judgment. The judgment was against Lebo, and the sureties in his official bond. A fieri facias was issued, on which Lebo's personal property was levied; and on this., six successive writs of venditioni exponas were issued and returned; on-the last of which, the plaintiff and Lebo, without consulting the sureties or obtaining their assent, came to. an agreement that the writ should be stayed ; that an alias fieri facias should be issued and levied on Lebo's real property, which was to be considered as having been condemned ; and that the plaintiff should be at liberty to sell it at the succeeding term. By this arrangement, Lebo’s personal property was effectually released ; as it was left in, his possession, and, it seems, after-wards disposed of'by him., It is unnecessary to recapitulate the learning on the subject: the whole matter lies in a very narrow compass. Under the subsequent arrangement, the levy was neither at law nor in equity satisfaction, as regards Lebo, the principal. But there is no clearer rule, in equity, than that where the creditor has the means of satisfaction in jjjs jjancjs and chooses not to retain it, but suffers it to ¡iass into the hands of the principal, the surety can never be called Tr , ^ , , , on. Here there was a levy on personal property belonging to principal, and that was satisfaction pro tanto, as regards the sureties ; of the benefit of which nothing could deprive them, except an assent, on their part, to the arrangement by which the property was released. That, however, is not pretended. But it is said the distinction between principal and sürety ceases after judgment has been obtained on the original security, and that as to subsequent transactions, equity views them with equal favour. If that be so, I am ignorant of any authority that bears it out; and on the ground of reason, it certainly cannot be supported. The distinction is carried throughout. At the trial, the plaintiff exhibited a statement of the amount claimed to be due, allowing credit for a number of partial payments ; and then prayed the direction of the Court, that the principle on which the calculation was made, was legal and proper ; but the request was submitted in terms so obscure, as to render the object difficult of comprehension; and the Court, perhaps not understanding exactly what was meant, refused to give any direction at all. As explained, here, however, it is clear that the principle of the calculation was the true one. Interest is always calculated on a judgment to the time of the first payment, which is applied in the first instance to discharge the interest, and afterwards, if there be a surplus, to sink the principal, and so, toties quoties, care being taken that the principal, at any time thus reduced, be not suffered to accumulate by the accruing interest. This is sustained not only by usage, but by decision ; and although it will not effect complete justice, it will approach it more nearly than the method sometimes used by merchants, of deducting partial payments, together with interest, from their respective dates, fi«m the principal and interest of the debt; for by the latter, the principal may in process of time be discharged, without pay in w a farthing beyond the interest — » as may easily be demonstrated. Judgment reversed.

The opinion of the Court was delivered by Gibson, C. J. — A man may certainly give employment to a factor from motives of benevolence, and without an expectation of gain; but he cannot give him the substantial ownership of the goods without its burthens. Unless he retain the title with power to enforce it against the factor himself, he cannot enforce it against the factor’s creditors: the goods fall into the mass of the factor’s effects and are subject to make satisfaction for his debts, as if they had originally belonged to him. And this springs from the policy of the law which discourages every separation of the actual, from the apparent ownership of a chattel. The question then depends on the intention to retain or pass the property between the parties themselves, and not on the presence or absence of the word agent as an addition to the name of the consignee in marking the packages or casks, whose use is to set forth, not the nature of his title to them, but his address for the purpose of having them forwarded. What then was the contract? The plaintiffs simply agreed to consign goods to an insolvent friend, to be sold on their account for not less than the invoice prices; and the proceeds to the value of those prices were to be remitted to them, or the goods returned. Thus the excess of the sales over the invoice prices, was to be the amount of the commissions; and that it was to be contingent, is the only feature of the case which differs it from an ordinary consignment on commission. Hence it is urged, with apparent plausibility, that the same consequences would be produced by a sale. But at whose risk were the goods in the custody of the consignee? The very purpose of the arrangement was to protect them from his creditors; and to effect it, required that they should in reality be the property of the consignors, who must consequently have agreed in good faith to take upon themselves the risks incident to the ownership in order to carry out the plan. Had the goods been destroyed without the fault of the consignee, or sold to those who had become unable to pay for them, the consignors would have been liable to bear the loss: they would have been estopped from alleging the ownership to have been in the consignee by the very object and terms of the agreement, as well as by the stipulated right to put an end to the arrangement by returning the goods, which was rested on an evident supposition that the consignee was to be only an agent. If however the agreement was a trick to cover an understanding inconsistent with its terms, it might be fraudulent in fact; but to declare it so, would be the province of a jury. The opposite conclusion, merely as a legal inference, is to be drawn from the right to return the goods, which shows that the ownership of them was intended to remain in the consignors. Whether the agreement was merely colourable, was left to the jury; and the question of legal fraud was well decided. The only authority which might raise a doubt of it, is Jenkins v. Eichelberger, (4 Watts 121), which however is distinguishable from the case before us in regard to the object of the consignor, which was not to benefit the customer, but to sell the article and retain a lien on it severed from the possession, which the law abhors. The transaction was, in form and purpose, a sale at cost with interest at six months; and the stipulated right to have the hides returned to the vendor as leather to be sold by him, deducting from the proceeds the price of the raw material and five per cent, commission for guaranty, showed conclusively that they were to be sold as the property of the manufacturer. ■ That stipulation was collateral to the contracf of sale; and being executory also, it did not bind the property. But how different the circumstances of such a case, and a delivery avowedly to sell on a sliding commission! Were I to put my horse into the custody of a friend to be sold for a designated sum, with permission to retain whatever should be got beyond it, it would not be suspected that I had ceased to own him in the meantime, or that my friend would not be bound to return him, even without a stipulation, should he have failed to obtain the prescribed price. Yet stripped of its circumstances, that is exactly our case; in which it cannot be doubted that the ownership of the property at the time of the seizure, was in,the plaintiffs. , Judgment affirmed.

Opinion by Mr. Justice Roberts, On July 22,1968, appellant Boron Oil Company applied to the Borough of Beaver for a building permit for the construction of a gasoline station on property which it owned in the Borough. On the following day, the Borough Manager notified appellant that the Borough was in the process of revising its present zoning ordinance and that the requested permit could not is sue for the reason that the proposed rezoning, if adopted, would prohibit a service station at appellant’s site. Appellant thereafter brought an action of mandamus to compel the issuance of the permit. Following trial without a jury in the Court of Common Pleas of Beaver County, judgment was entered against appellant. The Commonwealth Court affirmed, and we allowed a further appeal to this Court. For reasons which follow, we likewise affirm. It is the settled law of this Commonwealth “that a building permit may be refused if at the time of application there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought.” Hertrick Appeal, 391 Pa. 148, 153, 137 A. 2d 310, 313-14 (1958); see also Shender v. Zoning Board of Adjustment, 388 Pa. 265, 131 A. 2d 90 (1957); A. J. Aberman, Inc. v. New Kensington, 377 Pa. 520, 105 A. 2d 586 (1954); Gold v. Building Committee of Warren Borough, 334 Pa. 10, 5 A. 2d 367 (1939). Accordingly, the sole and dis-positive issue in this appeal is whether such an ordinance was “pending” as of the date of appellant’s application for a building permit. In resolving this issue, the following chronology is of note: April 12, 1966—-Borough Council creates Planning Commission to consider a new zoning scheme for the Borough and appoints its members. July 11,1967—Borough Council and Planning Commission meet to discuss a master plan. August 8,1967—Borough Solicitor directed to study County’s proposal for master plan. September 12, 1967—Borough Council resolves to invite County Planning Office to submit a contract for the preparation of a master plan. October 10, 1967—Borough Council accepts County Planning Office’s proposal. March 14, 1968—appellant obtains option to purchase the property involved in this appeal. April 9, 1968—Borough Council adopts ordinance transforming Borough Planning Commission into Borough Zoning Commission. April 10, 1968—appellant exercises option and orders survey and abstract of the property. May, 1968—appellant applies to Commonwealth for permit. June 26, 1968—Commonwealth grants approval. July 8, 1968—Borough Zoning Commission publishes legal advertisement notifying public of a public meeting to be held on July 24, 1968, to consider a proposed new zoning ordinance and advising interested persons that the ordinance would be available for inspection at the office of the Borough Secretary after July 15, 1968. July 22, 1968—appellant applies to Borough for bioilding permit. July 24, 1968—public meeting held on the proposed ordinance. July 25, 1968—Borough Zoning Commission recommends to Borough Council adoption of the proposed ordinance. October 9, 1968—ordinance approved on first reading subject to revision before final reading. January 14, 1969—ordinance finally adopted by Borough Council. The record thus reveals that for approximately two years prior to appellant’s application, the Borough had expended substantial effort and had seriously considered an extensive revision of its existing zoning ordinance, and the new ordinance had been prepared pursuant to a comprehensive master plan. There is no evidence and appellant does not even suggest that the new ordinance was directed specifically against it or its property. The Borough Zoning Commission advertised a public meeting on the proposed rezoning two weeks prior to appellant’s application, and the proposed ordinance was available for public inspection one week prior to the application. These facts taken together constitute a sufficient “public declaration by the municipality that it intended to rezone the area.” Lhormer v. Bowen, 410 Pa. 508, 511, 188 A. 2d 747, 748 (1963). We therefore conclude that the proposed ordinance was “pending” at the date of appellant’s application and that the Borough Manager’s refusal of a building permit was not improper. The recent case of Mutzig v. Hatboro Board of Adjustment, 440 Pa. 455, 269 A. 2d 694 (1.970), involved a similar issue of whether or not an ordinance was pending at the date of an application for a building permit. Although this Court was divided in Mutzig, every Justice who participated in that decision expressed the view that an ordinance is pending when a Borough Council has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning. We believe that the same conclusion should prevail where, as here, the Borough Zoning Commission proposes a new zoning ordinance, makes the proposal open to public inspection, and advertises that the proposal will be discussed at a forthcoming public meeting. Appellant argues that the pending ordinance doctrine should not be so extended but should apply instead only to those situations whei*e the proposed ordinance has been formally introduced into the Borough Council and the Council has scheduled and advertised public hearings. In so arguing, appellant contends that a period of one, two or even more years might elapse before final action by Council. It is submitted that such a burdensome restraint upon an individual’s use of his property should not be countenanced. We are of course sensitive and sympathetic to the potentially onerous situation depicted by appellant and fully appreciate that “[t]he adoption of a zoning ordinance normally requires an extended period of time.” Gulf Oil Corp. v. Fairview Township Board of Supervisors, 438 Pa. 457, 459, 266 A. 2d 84, 86 (1970). Nevertheless, in determining when a party obtains a vested right to a building permit, we must attempt, however difficult the task may be, to balance the interest of the municipality in effecting a change in its zoning laws free from the perpetuation of nonconforming uses against the interest of the individual property owner to be free from lengthy restraints upon the use of his property. If the pending ordinance doctrine were limited, as appellant advocates, only to the period of time during which the proposed ordinance is formally before the Borough Council for final action, any one or number of property owners could gain an unqualified right to a soon to be prohibited land use by the simple expedient of applying for a permit between the time the Zoning Commission announces the proposal and the time the proposal is before the Borough Council for consideration. Though the question is admittedly not easy, we believe that the Borough’s interest in precluding this eventuality is paramount and of greater concern than any regrettable but unavoidable harm suffered by an individual landowner. A word of caution is nevertheless in order. While Ave do not in this instance countenance a “race to the courthouse steps” by landoAvners to obtain rights to a nonconforming use, our present decision is not to be construed in any sense as granting a license to a municipality to use the pendency of a zoning ordinance as a device to impose either a general or selective moratorium on local land development. However much a rapidly expanding municipality may wish to declare “time out” and stop all development, such effect, by whatever means achieved, would be constitutionally impermissible. Moreover, even aside from questions of improper purpose, it is to be emphasized that the various governmental authorities charged with the responsibility of proposing, promulgating and administering local zoning and planning laws are under a basic duty to act reasonably. In sum, a building permit may be properly refused in situations such as the one at bar only when the municipality acts initially in good faith to achieve permissible ends and thereafter proceeds with reasonable dispatch in considering the proposed rezoning. The order of the Commonwealth Court affirming the judgment of the Court of Common Pleas of Beaver County is affirmed. Mr. Chief Justice Bell and Mr. Justice Babbieiu took no part in the consideration or decision of this case.

HOFFMAN, Judge: Appellant contends that the lower court erred in granting appellee’s motion for summary judgment and in denying his petition for reconsideration. Because appellant failed to appeal from the grant of summary judgment, we do not reach the merits of that contention. We affirm the denial of appellant’s petition for reconsideration. On December 8, 1974, Provident National Bank, appellee, filed a complaint in assumpsit against appellant which sought judgment on three promissory notes totaling $113,-881.64 including principal and interest. After taking depositions and filing interrogatories, appellee moved for summary judgment on June 16, 1976. After argument on the motion, the lower court- granted summary judgment to appellee on September 21, 1976. On October 20, 1976, appellant filed a petition for reconsideration with the lower court. The court denied the petition in an order dated October 21, 1976. On November 15, 1976, appellant filed notice of an appeal from the October 21 order. Appellant contends that the lower court erred in granting appellee’s motion for summary judgment. Appellee responds that our Court has no jurisdiction to consider the merits of the grant of summary judgment because appellant failed to take an appeal within the statutorily mandated time period. The docket entries reveal that appellant did not file an appeal within 30 days from the entry of summary judgment. Prior to the adoption of the Pennsylvania Rules of Appellate Procedure (Pa.R.A.P.), 42 Pa.C.S., Pennsylvania case law was unequivocal on the effect of a failure to perfect a timely appeal. Commonwealth v. Lord, 230 Pa.Super. 96, 100, 326 A.2d 455, 458 (1974), summarized the applicable case law: “In taking an appeal, the appellant must comply with all applicable statutory requirements. Massachusetts Bonding & Insurance Company v. Johnston & Harder, Inc., 330 Pa. 336, 199 A. 216 (1938). Pursuant to the Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502 (17 P.S. § 211.502(a)) an appeal to this court ‘from any order shall be filed within thirty days of its entry.’ Time limitations for the taking of appeals have been strictly construed by Pennsylvania courts in the past. See, e. g., Commonwealth v. Peters, 178 Pa.Super. 82, 113 A.2d 327 (1955); Commonwealth v. Schneiderman, 162 Pa.Super. 461, 58 A.2d 196 (1948). It is also recognized that ‘[w]hen an Act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it or to allow an appeal nunc pro tunc, except where there is a showing of fraud or its equivalent.’ Commonwealth v. Wright, 187 Pa.Super. 39, 42, 142 A.2d 336, 337 (1958). See also Ifft v. Hunter, 202 Pa.Super. 487, 489, 198 A.2d 436, 437 (1964) (‘we [Superior Court] must take notice of the defect [untimely appeal] and there is no room for the exercise of discretion on our part’); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965) (cases cited therein); Commonwealth ex rel. Nicosia v. Nicosia, 184 Pa.Super. 440, 136 A.2d 135 (1957).” Pennsylvania courts have consistently held that an untimely appeal must be quashed. West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Nardo v. Smith, 448 Pa. 38, 292 A.2d 377 (1972); Luckenbach v. Luckenbach, 443 Pa. 417, 281 A.2d 169 (1971); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965); Kellman v. McShain, 369 Pa. 14, 85 A.2d 32 (1951). Moreover, Pennsylvania courts have repeatedly held that a petition for reconsideration, rehearing, or reargument does not affect the final judgment unless the court retains control, as for example by staying all proceedings. A motion for reconsideration or for a rehearing and proceedings thereon does not have the effect of tolling the appeal statute when no stay has been granted pending the rule. Merrick Estate, 432 Pa. 450, 247 A.2d 786 (1968); Cumberland Val. S. & L. Assn. v. Myers, 396 Pa. 331, 153 A.2d 466 (1959); Baily Petition, 365 Pa. 613, 76 A.2d 645 (1950); Seem’s Estate, 341 Pa. 198, 19 A.2d 60 (1941); Henry’s Estate, 290 Pa. 537, 139 A. 198 (1927); Silver, Lovitz & Atkinson v. Scaltrito, 239 Pa.Super. 253, 361 A.2d 705 (1976). In Silver, appellee took a default judgment on January 7, 1975. Appellant filed a petition to open which the lower court denied on February 27, 1975. On April 7, 1975, appellant filed a petition for reconsideration of its petition to open. On April 9, 1975, the lower court denied the petition for reconsideration. On April 22, 1975, appellant filed an appeal to our Court. We quashed the appeal and stated: “The Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502 (17 P.S. § 211.502(a)) provides that an appeal to this court ‘from any order shall be filed within thirty days of its entry.’ Appellant’s petition to open the default judgment was denied on February 27, 1975. Since there was no stay of these proceedings by the lower court, the time for appeal on this case commenced on that date. Appellant’s subsequent petition for reconsideration had no effect on the appeal period.” Silver presented a factual situation almost identical to the case at bar. However, the Pennsylvania Supreme Court has subsequently adopted the Rules of Appellate Procedure which became effective on July 1, 1976, and are applicable to the instant case. We must, therefore, determine whether the new Rules mandate a different result. Rule 903(a) prescribes the time for filing an appeal. “Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.” Rule 105(b) expressly prohibits an appellate court from enlarging the time for filing a notice of appeal. It states: “An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time, but the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review.” The comment to subdivision (b) makes it clear that courts retain the power to grant relief in the case of fraud or breakdown in the processes of a court. Rule 903(b) is based upon section 502(a) of the Appellate Court Jurisdiction Act. See Comment to Rule 903. The new Rules do not manifest an intent to depart from prior law with respect to the effect of an untimely appeal. In fact, the Rules simply restate the requirements of the prior law. Untimely appeals continue to raise a jurisdictional issue. Therefore, we reiterate our prior position and hold that when a statute requires that an appeal be filed within a certain period of time, an untimely filing will not perfect the appeal. Thus, the effect of the failure to comply with 903(a), is that the appeal must be quashed. We now consider what effect the filing of a petition for reconsideration will have upon the running of the appeal time under the new Rules. Rule 1701 provides, in pertinent part: “(a) Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasi judicial order is sought, the lower court or other government unit may no longer proceed further in the matter. “(b) After an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may: “(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding. “(2) Enforce any order entered in the matter, unless the effect of the order has been superseded as provided in this chapter. “(3) Grant reconsideration of the order which is the subject of the appeal or petition, if: “(i) an application for reconsideration of the order is filed in the lower court or other government unit within the time provided or prescribed by law; and “(ü) an order expressly granting reconsideration of such prior order is filed in the lower court or other government unit within the time prescribed by these rules for the filing of a notice of appeal, petition for allowance of appeal or petition for review of a quasijudicial order with respect to such prior order, or within any shorter time provided or prescribed the law for the granting of reconsideration. “A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for allowance of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order, and the clerk of any court in which such an inoperative notice or petition is filed or docketed shall upon praecipe of any party note on the docket that such notice or petition has been stricken under this rule.” As the comment to § 1701(b)(3) indicates, this subdivision is intended to resolve the question of the effect of an application for reconsideration on the appeal process. The Rule permits the lower court to grant reconsideration if action is taken during the applicable appeal period. It also precludes the possibility that the power to grant reconsideration could be inadvertently foreclosed by appellant’s taken a “snap” appeal. Rule 1701 clearly contemplates that a party will simultaneously file notice of its appeal and its petition for reconsideration. If the petition is meritless, the lower court may deny the application. The prior notice of appeal retains its validity and prevents the possibility that the appeal time will run while the petition for reconsideration is pending. If the application has merit, the lower court may grant the petition. In that instance, the notice of appeal becomes inoperative. After the court reconsiders the merits of the claim, it will enter a new order. The appeal time runs anew from the entry of the order. This Rule resolves the dilemma of a party who finds himself before two courts at once. Subdivision (3) of 1701 only becomes operative after the provisions of its heading (b) have been met. Rule 1701(b) clearly provides that “after an appeal is taken . . . ” the lower court may grant or deny a petition for reconsideration. We believe that the new Rule expressly embodies the prior rule that, absent a stay or order granting reconsideration issued by the lower court, a petition for reconsideration does not toll the statutorily mandated appeal time. To hold otherwise would permit a party to employ dilatory tactics as a strategy. In the instant case, appellant failed to file an appeal from the grant of summary judgment. Appellant’s petition for reconsideration did not toll the appeal statute; a stay was neither requested nor granted; nor did the lower court grant reconsideration. Therefore, the grant of summary judgment is not properly before us and we do not reach the merits of the claim. Appellant has appealed from the order denying his petition for reconsideration. Pennsylvania case law is absolutely clear that the refusal of a trial court to reconsider, rehear, or permit reargument of a final decree is not reviewable on appeal. We will not permit appellant to do indirectly that which he cannot do directly. Merrick Estate, supra; Baily Petition, supra; Seem’s Estate, supra; Henry’s Estate, supra; McCready v. Gans, 242 Pa. 364, 89 A. 459 (1913). See also Cumberland Val. S. & L. Assn. v. Myers, supra; First Baptist Church at Pittsburgh v. Pittsburgh, 341 Pa. 568, 20 A.2d 209 (1941); Silver, Lovitz & Atkinson v. Scaltrito, supra. Order affirmed. PRICE, J., did not participate in the consideration or decision of this case. . The applicable time period in the instant case was 30 days, see text infra. . Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502; 17 P.S. § 211.502(a): “(a) Except as otherwise provided in this section an appeal under this act from any order shall be filed within thirty days of its entry.” ' . In Alco Parking Corp. v. Pittsburgh, 453 Pa. 245, 307 A.2d 851 (1973), rev’d on other grounds, 417 U.S. 369, 94 S.Ct. 2291, 41 L.Ed.2d 132 (1974), the Pennsylvania Supreme Court held that if the lower court grants a petition for reargument within the 30 day appeal period, the court necessarily indicated an intention to stay the proceedings during reargument, pending any change or modification in its original order. They further stated that, under those circumstances, appellant’s failure to file an appeal within 30 days of the original order would not result in the jurisdictional defect of an untimely appeal. Rule 1701 resolves the problems that the Supreme Court confronted in Aleo.

Opinion by Me. Justice Pomeeoy, This is an appeal from a final decree of the court below sustaining preliminary objections in the nature of a demurrer to a complaint in equity and dismissing the complaint. The suit was brought to prevent the assertion by defendant of the statute of limitations as a defense in an action at law in trespass pending in the same court. The narrow question presented for our resolution is the determination of the date of commencement of the period of limitation applicable to an action brought by an insurance carrier as subrogee to the rights of its insured, against an uninsured motorist. The record reveals the following facts: The Insurance Company of North America (hereinafter INA) issued to Alexander Greenhill, Jr., a standard automobile insurance policy which afforded “uninsured motorist” coverage; i.e., INA agreed to pay to its insured all sums which Greenhill would be legally entitled to recover for personal injuries arising from a collision between Ms vehicle and one operated by an uninsured motorist. The policy further provided that the amount of damages was to be determined by agreement between INA and its insured, and if they failed to agree, by arbitration. On May 22, 1967, while this policy was in effect, Greenhill suffered personal injuries as a result of a collision between his car and an automobile operated by appellee Carnahan, an uninsured motorist. The parties to the insurance contract could not agree as to the amount of damages, and the insured filed a claim against INA under the arbitration clause of the policy. On February 28, 1968, approximately nine months after the occurrence of the injury, the arbitrator awarded Greenhill $9,250, which INA duly paid. On June 3, 1969, fifteen months after the arbitration award and two years and thirteen days subsequent to the accident in which Greenhill was injured, INA filed a praecipe for summons in trespass against the uninsured motorist Carnahan. The action was filed by INA in the name of its insured pursuant to Pa. R. C. P. 2002(d). After service of the praecipe, counsel for appellee advised counsel for INA that the two year statute of limitation for personal injury actions (Act of June 24, 1895, P. L. 236, §2, 12 P.S. §34) would be pleaded as a defense to the suit. Without further pursuing the trespass action, INA thereupon initiated this equity action, with the result above indicated. The Act of 1895, supra, provides that a suit to recover for personal injury shall be brought “within two years from the time when the injury was done and not afterwards.” It is beyond dispute that at the time the trespass action was brought on June 3, 1969 in the name of the insured, Greenhill, to recover for the injuries allegedly sustained by him on May 22, 1967, the action was barred. Appellant INA does not quarrel with this proposition, but states that it was the real party in interest as subrogee of its insured, and that the period of limitation did not commence until INA suffered “injury” in the form of the arbitrator’s award. But this overlooks the fact that as subrogee INA possesses no greater rights than its insured, gee generally 50 Am. Jur. Subrogation, §110 (1944). The insured’s right of action accrued on the date he sustained the injury to his person, not the later date when the arbitrator found the appellant to be liable to the insured under the policy. It is the insured’s right of action which appellant was pursuing when it caused the trespass action to be filed. It is true, of course, that parties to a lawsuit or a potential lawsuit may modify the statutory period of limitation, but such a contract is good only as between themselves; they may not so contract in derogation of the rights of a third party who was not privy to the agreement. Thus the appellee in the present case may not be prejudiced by the circumstance that appellant’s subrogation right, a consequence of its contractual arrangement with the insured, did not accrue under the policy until some time later than the insured’s personal injury right. The purpose of any statute of limitations is to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims. Ulakovic v. Metropolitan Life Ins. Co., 339 Pa. 571, 575-76, 16 A. 2d 41 (1940). The defense of the statute of limitations is not technical, but “substantial and meritorious . . . [such statutes] are vital to the welfare of society and are favored in the law.” Schmucker v. Naugle, 426 Pa. 203, 231 A. 2d 121 (1967). It is no function of a court of equity to aid the circumvention of the statute of limitations by enjoining its assertion in a case such as this; appellant had 15 months after the award against it in which to act, and did nothing. The court below was correct in holding that merely because subrogation is an equitable doctrine, no new equitable rights are created in the subrogee, and that as to the subrogee as well as its insured the limitations period began to run on May 22, 1967. Decree affirmed; costs oa appellant. Mr. Chief Justice Bell and Mr. Justice Roberts toot no part in the consideration or decision of this case. The writ was not served, hnt was later reinstated on January 6, 1970, and served on appellee on January 13, 1970.

OPINION Justice SAYLOR. This is an appeal from an order of the Commonwealth Court preliminarily enjoining the implementation of an act of the General Assembly which, inter alia, reorganized the governance of the Pennsylvania Convention Center. The Court assumed plenary jurisdiction to resolve the underlying facial state constitutional challenge to the procedural regularity of the statute’s enactment. The primary issue presented is whether the act violates the Pennsylvania Constitution’s single-subject requirement. I. Senate Bill 1100 of 2002 (“SB 1100”) was introduced and finally adopted as a bill that would amend Title 53 (Municipal Corporations) of the Pennsylvania Consolidated Statutes. It became Act No. 2002-230 (“Act 230”) when then-Governor Mark S. Schweiker signed it into law on December 30, 2002. The statute effects several changes in local governance and related administrative matters. Additionally, it alters the size and composition of the Pennsylvania Convention Center’s governing board, as well as the manner in which the Convention Center is governed. Act 230 also repeals a portion of the Pennsylvania Intergovernmental Cooperation Authority (“PICA”) Act for Cities of the First Class, and adds Chapter 58 to Title 53, entitled “Contractors’ Bonds and Financial Security for Redevelopment Contracts.” The parties entered a Stipulation of Facts (the “Stipulation”) delineating the process by which SB 1100 became law. According to that document, as well as the legislative history and the copies of the various versions of the bill included in the record, SB 1100 was initially introduced in the General Assembly in October of 2001. At that time, it was five pages in length and was entitled, AN ACT Amending Title 53 (Municipalities Generally) of the Pennsylvania Consolidated Statutes, further providing for governing body of municipal authorities. Stipulation at ¶ 2; see SB 1100, Printer’s No. 1381 at 1. The only substantive provision contained in this original version of the bill was the inclusion of a citizenship requirement for the board members of business improvement district authorities created pursuant to the Municipality Authorities Act. This entailed the addition of a new paragraph to Section 5610(b), 53 Pa.C.S. § 5610(b), stating: Each member of the board of a business improvement district authority that was established by a borough pursuant to the [Municipality Authorities Act], on or before the effective date of this paragraph shall be a taxpayer in, maintain a business in or be a citizen of the borough by which that member is appointed. SB 1100, Printer’s No. 1381 at 3. After approval by the Senate, the bill was sent to the House of Representatives in December of 2001, where, over the course of the following seven months, it was amended three times, in each instance by the addition of relatively minor changes. In the first of these amendments, for example, the title was enlarged to include the phrase “and for certain fiscal reporting,” several revisions were made to the text quoted above, and the language of Section 5612(b), 53 Pa.C.S. § 5612(b) (relating to the reporting requirements of municipality authorities), was slightly altered. On June 26, 2002, after all of these revisions had occurred, the title of the bill read as follows: AN ACT Amending Title 53 (Municipalities Generally) of the Pennsylvania Consolidated Statutes, providing for acceptance of gifts or donations; and further providing for governing body of municipal authorities and for certain fiscal reporting. Stipulation at ¶ 13; see SB 1100, Printer’s No. 2157 at 1. The substantive provisions of the bill remained modest and were limited essentially to the matters described above, as well as the addition of a measure authorizing municipalities to hold in trust any gifts bestowed upon them. See SB 1100, Printer’s No. 2157 at 9; 53 Pa.C.S. § 1391. By that date, the bill had been passed by both the House and Senate after receiving three considerations. See Pa. Const, art. Ill, § 4 (“Every bill shall be considered on three different days in each House.”). Thereafter, on October 9, 2002, the bill was reported to the full Senate as committed for concurrence in the House’s amendments, but was sent to the Senate Committee on Rules and Executive Nominations (“Senate Rules Committee”) before concurrence took place. The committee altered the bill, and reported it back to the full Senate on November 26, 2002 — the second-to-last day of the legislative session — for a final vote. As amended, the bill now bore the title: AN ACT Amending Title 53 (Municipalities Generally) of the Pennsylvania Consolidated Statutes, providing for acceptance of gifts or donations; further providing for powers and duties of the Municipal Police Officers’ Education and Training Commission; prohibiting political activity by municipal police officers; further providing, in Parking Author ities, for definitions, for purposes and powers and for special provisions for authorities in first class cities; providing, in parking authorities in first class cities, for additional special provisions, for management of authority funds, for special funds, for bonds, for contracts with authority obligees, for Commonwealth pledges, for bond and trust indentures, for funds collected, for bonds as legal investments, for pledge validity, for security interests in funds and accounts and for bankruptcy limitations; further providing for municipal authority governing bodies and money; providing for regulation of taxicabs and limousines in first class cities; further providing for governing body of municipal authorities and for certain fiscal reporting; codifying the Act of June 27, 1986 (P.L. 267, No. 70), known as the Pennsylvania Convention Center Authority Act; defining “expansion or substantial renovation”; further providing for purposes and powers and for capital and operating budgets; providing for expansion funding; further providing for governing board, for moneys of the authority, for award of contracts, for interests of public officers and for rental tax; making an appropriation; and making repeals. Stipulation at ¶ 19; see SB 1100, Printer’s No. 2436 at 1. The changes to the body of the bill, which was now some 127 pages in length, were likewise extensive. These revisions included, among others things: the repeal of Section 209(k) of the PICA Act, which, inter alia, had required arbitrators involved in resolving certain collective bargaining disputes to accord substantial weight to Philadelphia’s financial plan and its ability to fund any relevant salary increases, and had, additionally, provided for judicial review of such awards; changes to the size and composition of the Pennsylvania Convention Center Authority’s governing board, as well as the manner in which the Convention Center is governed; a transfer of authority over taxis and limousines in Philadelphia from the Public Utility Commission to the Philadelphia Parking Authority; a grant of new powers to the Parking Authority to develop mixed-use projects combining public parking facilities with commercial, residential, industrial, and retail components; an expansion of the bonding requirements for small contractors engaged in redevelopment activities within Philadelphia; the curtailment of oversight authority by Philadelphia’s Finance Director over spending by the Parking Authority; and a prohibition on police officers participating in election campaigns. The newly-expanded bill was approved by the full Senate on the same day it was reported out of committee, and was passed in the House of Representatives the following day, November 27, 2002, which was the last day of session before adjournment sine die. SB 1100 was then approved by the Governor, thus becoming Act 230. On January 23, 2003, the City of Philadelphia (the “City”) and its mayor, the Honorable John F. Street (in his capacity as a city taxpayer and in his official capacity as Mayor) [hereinafter “Petitioners”], filed a petition for review in the Commonwealth Court in the nature of a complaint seeking a declaratory judgment and injunctive relief (the “Complaint”), as well as a motion for a preliminary injunction. In the Complaint, Petitioners asserted that Act 230 will harm the Philadelphia region’s economy — in particular, its hospitality industry — as well as the City’s reputation and its ability to bargain with its uniformed personnel, and that it will restrict the City’s home-rule rights. They averred that the repeal of Section 209(k) of the PICA Act, see 53 P.S. § 12720.209(k) (relating to arbitration awards pursuant to the Policemen and Firemen Collective Bargaining Act), was accomplished in a deceptive manner by burying the one-sentence repealer deep within the bill as amended late in the legislative process. Petitioners contended generally that the Act was passed using a “speedy” and “stealthy” process that violated the state Constitution. In this regard, Petitioners alleged that, on November 26 and 27, 2002, along with hundreds of other bills, the General Assembly of the Commonwealth of Pennsylvania was presented, for the first time, with a 127-page bill containing thousands of words, covering scores of subjects and making fundamental changes to institutions operating within the City of Philadelphia and beyond. The title of that bill, itself covering 27 lines of densely-worded text, still was not enough to describe the many changes that followed. Faced with a take-it-or-leave-it situation on the eve of the Thanksgiving holiday, the legislators in both Houses passed the bill on the same day it was given to them. Complaint at 5. Petitioners asserted causes of action alleging violations of the Pennsylvania Constitution, Article III, Section 1 (original purpose), Section 3 (single subject and title), Section 4 (three readings), and Section 6 (revival and amendment of laws). The respondents — the Commonwealth of Pennsyl vania, Governor Edward G. Rendell, the General Assembly’s Presiding Officers (Senate President Robert C. Jubelirer and then-Speaker of the House Matthew J. Ryan ), the minority leaders of the Senate (Robert J. Mellow) and House (H. William DeWeese), and the Pennsylvania Convention Center Authority — -joined by the Philadelphia Parking Authority as Intervenor (collectively “Respondents”), filed preliminary objections in the nature of a demurrer and a motion to dismiss. The Commonwealth Court, President Judge Colins presiding, held a hearing on Petitioners’ request for a preliminary injunction, at which Mayor Street and PICA Chairman Joseph Vignola testified. Additionally, House Members Babette Josephs and Kathy Manderino provided testimony concerning their confusion or lack of knowledge regarding the content of SB 1100 after it was reported out of the Senate Rules Committee as a 127-page bill on the penultimate day of session. Thereafter, on February 19, 2003, the court filed an unpublished opinion and an accompanying order disposing of the motion. The court opined initially that, while the testimony of the House Members was credible, it could not, consistent with the enrolled bill doctrine, be given any weight. As to the substance of Petitioners’ allegations, the court indicated that Article III, Section 3 was designed to prevent abuses related to the practice of passing “omnibus” bills with hundreds of pages of unrelated provisions and little public notice as to their contents. It noted that, while the restrictions contained in Section 3’s text do not lend themselves to “bright line” rules, the procedure used in the present case “crossed th[e] line” as to what is acceptable under that provision. The court continued: Most of this legislation was concealed from the public until 24 hours prior to its passage. While some commentators have referred to similar types of bills as “stealth legislation” this Court does not wish to use that term as it would impute evil motives to the leadership of the General Assembly. The term “24 hour legislation” would seem to be more appropriate. However, it is exactly such “24 hour legislation” that the Constitutional amendments of 1874 were meant to prohibit. Unfortunately, the public had no indication that such radical changes in governance were being contemplated despite the fact that, as noted, the taxpayers will be footing the bill for all this. Pennsylvania is one of the few states that has incorporated, via its constitution, restraints upon the Legislature’s ability to propose and pass legislation without public notice. The foregoing scenario is exactly what the framers of the 1875[sic] Constitution meant to prevent. Commonwealth Ct. op. at 26. Accordingly, the Commonwealth Court determined that Petitioners had established a clear right to relief under Article III, § 3. The court additionally concluded that the testimony of May- or Street and Mr. Vignola demonstrated irreparable harm to the City by establishing that the repeal of Section 209(k) of the PICA Act could undermine Philadelphia’s five-year financial plan by introducing uncertainty into the ongoing arbitration process relative to the City’s firefighters, and that other provisions of Act 230 could harm the City’s hospitality industry. Finally, the court found that delaying implementation of the Act would not harm Respondents, and that the public interest favored maintaining the status quo ante pending final resolution of the underlying constitutional claims on the merits. Thus, the Commonwealth Court entered an order preliminarily enjoining implementation of the Act and reconstituting the governing body of the Convention Center Authority as it existed prior to the bill’s passage. The Presiding Officers, the Convention Center Authority, the Commonwealth, Representative DeWeese, and the Philadelphia Parking Authority appealed. Some of these appeals activated the automatic supersedeas provision of Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure, see Pa. R.A.P. 1736(b), which the Commonwealth Court lifted, but this Court reinstated. Preliminary objections were still pending when, on April 21, 2003, this Court assumed plenary jurisdiction. Respondents, as appellants, raise several threshold issues challenging the judiciary’s ability to resolve this controversy on the merits. They argue initially that Petitioners lack standing to challenge the validity of Act 230. They also contend that, even if jurisdiction is present, the enrolled bill doctrine renders Petitioners’ claims non-justiciable. Finally, they claim that the Philadelphia Parking Authority and the PICA Authority are indispensable parties, and that Petitioners’ failure to name them as respondents deprived the Commonwealth Court in the first instance — and this Court presently — of subject-matter jurisdiction. As to the substance of the case, the Presiding Officers and Minority Leader DeWeese argue that during the amendment process, SB 1100 “never wavered” from its initial topic of municipalities generally, and that the bill was only passed after due consideration and “lively debate” in both Houses. The Commonwealth and the Pennsylvania Convention Center Authority add that legislation may be materially altered during the course of its passage without impermissibly changing its purpose, and that this Court has never held otherwise. They maintain that there is no evidence that the Act was “sneak” legislation or that there was actual deception of legislators or anyone else during the bill’s consideration and passage through the General Assembly. They also contend that all of the Act’s provisions are reasonably reflected in its title, and that all amendments to the bill were germane to its original topic of municipalities. Finally, they state that the repeal of Section 209(k) of the PICA Act did not violate Article III, Section 6, as that constitutional provision does not apply to repeals. Intervenor Philadelphia Parking Authority, for its part, suggests that the present case is not premised upon any genuine concern about a constitutional violation, but reflects an effort by entities who suffered a political defeat in the Legislature to regain the ground they lost through the court system. Petitioners counter that this case is not solely political, but rather, represents an important test concerning the process by which the laws of this Commonwealth are created. In this regard, Petitioners state that Act 230 was passed in a manner designed to conceal its true effects from all but a “small circle of insiders.” They argue that such process deprived the legislators who were required to vote on the bill of the notice they needed to act with circumspection and cast an informed vote, and state further that this procedure was not simply “business as usual” within the General Assembly, but rather, violated fundamental precepts set forth in Article III of the state Constitution. Petitioners maintain that such limitations are designed to ensure open and honest government, and that the Commonwealth Court correctly determined that the voluminous last-minute changes to SB 1100 implicated the concerns that motivated the electorate in 1874 to adopt Article Ill’s procedural restrictions. They contend, moreover, that their specific constitutional claims are meritorious because, while many provisions concerning diverse subjects were included in the bill, there was no single unifying topic encompassing all of them, and additionally, the title of the final version of the bill did not provide reasonable notice as to many of the legislative revisions involved, particularly the repeal of portions of the PICA Act and the expansion of bonding requirements for small contractors engaged in redevelopment projects. II. A. 1. Standing As noted, Respondents first question whether Petitioners have standing to pursue their claims. They argue that all of the City’s alleged injuries are speculative and remote, and that there is little record evidence to support the City’s contention that it has suffered any harm. They aver further that, in any event, the City cannot be aggrieved by any change in the governance of the Convention Center Authority because the latter is an instrumentality of the Commonwealth, not the City. Here, Respondents cite to the Commonwealth Court’s decision in City of Pittsburgh v. Commonwealth, 112 Pa. Cmwlth. 188, 535 A.2d 680 (1987), for the position that Philadelphia is “merely a creature of the sovereign created for the purpose of carrying out local government functions,” Brief of Convention Center Authority at 27, and thus, has no enforceable right to have the appointments to the Convention Center Board continue to be made pursuant to the terms of the prior legislation, see supra note 3. Petitioners answer that several provisions of Act 230 have an adverse effect upon the functions, duties, and responsibilities of the City as such. They state that these provisions give standing not only to the City, but to Mayor Street as well, both in his official capacity as mayor and in his individual capacity as a taxpayer, since some of the changes will require the City to underwrite new expenditures from general tax revenues. The requirement of standing under Pennsylvania law is prudential in nature, and stems from the principle that judicial intervention is appropriate only where the underlying controversy is real and concrete, rather than abstract. See In re Hickson, 573 Pa. 127, 135-36, 821 A.2d 1238, 1243 (2003). This principle is reflected in the doctrine’s core conception that a party who is not negatively affected by the matter he seeks to challenge is not aggrieved, and thus, has no right to obtain judicial resolution of his challenge. See Pennsylvania Game Comm’n v. Department of Envtl. Res., 521 Pa. 121, 127, 555 A.2d 812, 815 (1989); see also Zemprelli v. Daniels, 496 Pa. 247, 258, 436 A.2d 1165, 1168 (1981) (concluding that standing existed because the plaintiffs had “ ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions’ ” (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962))). “A litigant can establish that he has been ‘aggrieved’ if he can show that he has a substantial, direct and immediate interest in the outcome of the litigation....” In re Hickson, 573 Pa. at 136, 821 A.2d at 1243. See generally Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). A party has a substantial interest in the outcome of litigation if his interest exceeds that of all citizens in procuring obedience to the law. See Wm. Penn Parking Garage, 464 Pa. at 195, 346 A.2d at 282. The interest is direct if there is a causal connection between the asserted violation and the harm complained of; it is immediate if that causal connection is not remote or speculative. See Kuropatwa v. State Farm Ins. Co., 554 Pa. 456, 461, 721 A.2d 1067, 1069 (1998); Allegheny County v. Monzo, 509 Pa. 26, 34, 500 A.2d 1096, 1100 (1985). Thus, the fact that a party may be affected in a general way does not alone give him standing. See Wm. Penn Parking Garage, 464 Pa. at 197, 346 A.2d at 283. See generally Sedat, Inc. v. Commonwealth, Dep’t of Envtl. Res., 165 Pa.Cmwlth. 431, 436, 645 A.2d 407, 410 (1994). For reasons discussed infra, all Pennsylvania citizens have a general interest in ensuring that, when the General Assembly enacts legislation, it does so in conformance with the restrictions contained in Article III of the state Constitution. Here, however, Petitioners’ complaints stem from aspects of the bill under review that have particular application to Phila delphia. Therefore, Petitioners’ interest in the outcome of the litigation is substantial, as it surpasses that of Pennsylvania citizens generally in procuring obedience to the law. Furthermore, as all of the changes complained of flow from the enactment of Act 230, a causal connection exists between the asserted constitutional violation and the alleged harm. Thus, the City’s interest in this litigation is direct. The issue, then, reduces to whether that interest is sufficiently immediate to create standing. As discussed, Respondents argue that standing is absent because all of the harms that Petitioners have asserted are remote and speculative, and Petitioners have not provided any factual support for its claims of injury. Certainly, allegations that the Act will hurt the City’s reputation, or that bookings at the Convention Center might decrease due to uncertainty as to whether an agreement will be reached with various labor unions, are indirect, remote and speculative. We are not aware of any Pennsylvania authority that supports the position that such abstract or uncertain harms are sufficient to confer standing. Moreover, there is nothing in the record tending to prove that bookings at the Convention Center will suffer, or have suffered, as a result of changes in the Convention Center’s governing board. Other concerns, however, are not as easily dismissed. For example, at the preliminary injunction hearing, Mr. Vignola provided credited testimony that Act 230’s repeal of Section 209(k) of the PICA Act will significantly interfere with PICA’s ability to perform its obligations under the cooperation agreement in existence between PICA and the City, because future City costs will no longer be subject to reliable estimation or control. The reason is that Section 209(k) required labor arbitrators to take into account the City’s existing five-year plan and its ability to pay for requested increases in salary and benefits for the City’s police officers and firefighters, see 53 P.S. § 12720.209(k)(l)-(2) (repealed), and these items comprise expenditures of $850,000,000, or over a quarter of the City’s annual operating budget. According to Mr. Vignola, with Section 209(k) no longer in effect, PICA will be unable to approve the City’s five-year plan, which will in turn cause PICA to withhold monetary grants and loans to the City. See 53 P.S. §§ 12720.208-12720.210. The repeal of Section 209(k) also removes the City’s right to obtain judicial review of any award granted to its uniformed personnel, and specifically, review of whether the City’s financial plan and its ability to pay for the cost increases were adequately considered. See 53 P.S. § 12720.209(k)(3) (repealed). These repealed provisions were of substantial benefit to the City in its efforts to develop an approved financial plan, maintain its fiscal stability, and receive assistance from PICA. While Respondents contend that there is no record evidence that the loss of these rights will impose any immediate harm upon the City, the rights are valuable in themselves as they assure an arbitration and judicial review process that is objectively helpful to the City in controlling costs and receiving monetary assistance; thus, the City’s loss of such rights via Act 230 constitutes immediate harm. Additionally, Mayor Street provided credited testimony that many small contractors with limited credit or cash reserves perform valuable redevelopment work within Philadelphia in conjunction with the City’s Redevelopment Authority, including urban' renewal projects aimed at revitalizing blighted neighborhoods. Under Act 230, whenever the contact amount exceeds $10,000, such businesses are subject to a bonding requirement of 200% of the value of the contract. See Act 230, § 7; 53 Pa.C.S. § 5804(a). According to the Mayor, the City is involved in implementing a large-scale neighborhood transformation effort which depends upon small contractors to bid for and perform much of the work involved, and the 200% bonding requirement will interfere with this effort by effectively disqualifying a number of small contractors with whom the City could otherwise conduct business. We thus conclude that the City’s interest in having its small-scale contractors remain free of the 200% bonding requirement is sufficiently immediate to confer standing upon the City. To the extent Respondents rely upon City of Pittsburgh for a contrary position, such reliance is misplaced. In that mat ter, the Commonwealth Court indicated that, as a municipality created solely to carry out local governmental functions, Pittsburgh lacked standing to assert that the statute challenged there imposed an unequal tax burden upon its residents. The court reasoned that, as the residents of the municipality were the ones allegedly burdened by the statute, they were the proper parties to challenge the law, particularly as there was no allegation that the city’s local governmental functions were affected by the statute. See id. at 191-92, 535 A.2d at 682. Here, by contrast, Petitioners contend not only that the City’s residents will be subjected to an enhanced tax burden, but that the Act affects city governmental functions relative to collective bargaining, budget management, and urban renewal. Therefore, the City’s present assertion that it is an aggrieved party is premised upon the effects of Act 230 upon its interests and functions as a governing entity, and not merely upon harm to its citizens individually. Accordingly, we hold that the City’s interests, as delineated above, are sufficient to provide the City with standing to bring the present action. Cf. Franklin Township v. Commonwealth, Dep’t of Envtl. Res., 500 Pa. 1, 11, 452 A.2d 718, 723 (1982) (concluding that a township had standing to contest the grant of a permit for solid waste disposal within its boundaries, as the grant implicated the township’s responsibility to protect the quality of life of its citizens). 2. Enrolled Bill Doctrine Next, several Respondents maintain that the present dispute is non-justiciable under the enrolled bill doctrine. In essence, they contend that, because SB 1100 has become law and is on tile with the Secretary of the Commonwealth, it is presumed to have been legally adopted, and thus, the judiciary may not “go behind its face to determine whether the procedural requirements of the Constitution were followed.” Brief of Presiding Officers at 14 (citing Kilgore v. Magee, 85 Pa. 401, 412 (1877)). Respondents’ concern appears to stem from the introduction the testimony of two Members of the House of Representatives at the preliminary injunction hearing. These Members testified that, during the hectic last hours of session, many bills were voted upon in rapid sequence and there was insufficient time to become familiar with the content of SB 1100 in its final, lengthy, form as it emerged from committee, thus making it impossible for them to cast an informed vote. An enrolled bill is one which has been certified by the Speaker of the House and the presiding officer of the Senate as having passed the General Assembly, and has been signed by the Governor and lodged with the Secretary of the Commonwealth. See Pennsylvania Sch. Bds. Ass’n v. Commonwealth Ass’n of Sch. Adm’rs, 569 Pa. 436, 453 n. 14, 805 A.2d 476, 486 n. 14 (2002); Robert E. Woodside, Pennsylvania Constitutional Law 348 (1985). In keeping with the strong presumption of validity enjoyed by all duly enacted legislation, see Harrisburg Sch. Dist. v. Zogby, 574 Pa. 121, 134-36, 828 A.2d 1079, 1087 (2003), as well as the need to preserve “the delicate balance critical to a proper functioning of a tripartite system of government,” Consumer Party of Pa. v. Commonwealth, 510 Pa. 158, 176, 507 A.2d 323, 332 (1986), this Court has exercised restraint when asked to invalidate legislation, particularly where to do so could “intru[de] upon the prerogatives of a sister branch of government.” Id. at 176-77, 507 A.2d at 332. One aspect of such restraint has been the principle, embodied in the enrolled bill doctrine, that, once a statute is attested by the presiding officers of the Legislature, approved by the Governor, and officially lodged, it is presumed to have been enacted in the manner required by law. As Act 230 is now an enrolled bill, we agree that the subjective, individualized motivations or impressions of specific legislators would not be an appropriate basis upon which to rest a determination as to its validity. Although the concerns expressed by the Members are not unfounded, taking such testimony into account would be “going behind” the statute as enacted and inappropriately delving into the mental processes of the legislators who voted on it. The same cannot be said, however, concerning review of constitutional compliance predicated upon the title and content of the bill as enrolled, or of the judicially noticeable legislative history. In this latter respect — that is, with regard to a bill’s history — we note that, while this Court did for many years adhere to a strict doctrine preventing it from considering matters of form in the passage of legislation, see Kilgore, 85 Pa. at 412 (stating that, “when a law has been passed and approved and certified in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage”); Mikell v. School Dist. of Phila., 359 Pa. 113, 123-27, 58 A.2d 339, 344-46 (1948); Perkins v. City of Phila., 156 Pa. 554, 568, 27 A. 356, 362 (1893); Woodside, Pa. Constitutional Law, at 348 (“The courts will not go back of the signatures of [the presiding officers and the Governor] to determine whether the bill was enacted in compliance with the constitutional requirements.”), this rule has been modified in recent years so that the appropriateness of judicial abstention now depends upon the situation presented. See generally Pennsylvania Sch. Bds. Ass’n, 569 Pa. at 454, 805 A.2d at 486-87; Consumer Party, 510 Pa. at 177, 507 A.2d at 333; David B. Snyder, Note, The Rise and Fall of the Enrolled Bill Doctrine in Pennsylvania, 60 Temple L.Q. 315, 326 (1986). In Consumer Party, most notably, this Court explained that, although the need to exercise restraint in deference to a coequal branch of government often militates in favor of abstention, “[t]he countervailing concern is our mandate to insure that government functions within the bounds of constitutional prescription.” Consumer Party, 510 Pa. at 177, 507 A.2d at 333. The Court stated: We may not abdicate this responsibility under the guise of our deference to a co-equal branch of government. While it is appropriate to give due deference to a co-equal branch of government as long as it is functioning within constitutional constraints, it would be a serious dereliction on our part to deliberately ignore a clear constitutional violation. * * * * ❖ We agree with the Attorney General that we must not inquire into every allegation of procedural impropriety in the passage of legislation. However, where the facts are agreed upon and the question presented is whether or not a violation of a mandatory constitutional provision has occurred, it is not only appropriate to provide judicial intervention, and if warranted a judicial remedy, we are mandated to do no less. Id. at 177-78, 180, 507 A.2d at 333-34. As in Consumer Party, the parties here have agreed upon the relevant facts, and the constitutional provisions that form the basis of Petitioners’ challenge are mandatory. See, e.g., In re Condemnation by Commonwealth, Dep’t of Transp., 511 Pa. 620, 625-26, 515 A.2d 899, 901-02 (1986) (indicating that Article III, Section 3 is mandatory in nature); Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 117 (Pa.Cmwlth.1998) (same), aff'd per curiam, 562 Pa. 632, 757 A.2d 367 (2000). See generally Consumer Party, 510 Pa. at 179-80, 507 A.2d at 333-34 (explaining that, “[w]hen the Constitution clearly sets forth the manner in which something shall be done, that procedure must be followed to the exclusion of all others ...,” and holding that Article III, Section 1 is mandatory). Therefore, we agree with the Commonwealth Court’s conclusion that the enrolled bill doctrine does not preclude judicial review the merits of the constitutional claims presented here. S. Indispensable Parties As a final threshold issue, Respondents maintain that the Court lacks jurisdiction because not all indispensable parties have been joined. Here, Respondents propose a wide array of parties that they claim should have been named as additional respondents, including: the new Convention Center Authority-board members, the four counties with new appointment powers relative to the Convention Center Authority, the Public Utility Commission, PICA and all of its bondholders, and the City’s firefighters’ and police officers’ unions. See Brief of Presiding Officers at 12-13. In essence, Respondents appear to contend that anyone whose interests may be affected by any aspect of the challenged legislation must be formally joined for jurisdiction to lie. This Court has stated that a party is indispensable “when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights.” Sprague v. Casey, 520 Pa. 38, 48, 550 A.2d 184, 189 (1988). “[T]he basic inquiry in determining whether a party is indispensable concerns whether justice can be done in the absence of’ him or her. CRY, Inc. v. Mill Serv., Inc., 536 Pa. 462, 469, 640 A.2d 372, 375 (1994). In undertaking this inquiry, the nature of the claim and the relief sought must be considered. See id. at 469, 640 A.2d at 375-76. Furthermore, we note the general principle that, in an action for declaratory judgment, all persons having an interest that would be affected by the declaratory relief sought ordinarily must be made parties to the action. See Mains v. Fulton, 423 Pa. 520, 523, 224 A.2d 195, 196 (1966). Indeed, Section 7540(a) of the Judicial Code, 42 Pa.C.S. § 7540(a), which is part of Pennsylvania’s Declaratory Judgments Act, states that, “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” While this joinder provision is mandatory, it is subject to limiting principles. For example, where the interest involved is indirect or incidental, joinder may not be required. See, e.g., Mid-Centre County Auth. v. Township of Boggs, 34 Pa.Cmwlth. 494, 501, 384 A.2d 1008, 1012 (1978) (concluding that Pennsylvania’s Department of Environmental Resources was not an necessary party to a declaratory judgment action where its sole interest in the dispute concerned the identity of the party who would be responsible for complying with its regulations). See generally Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 379, 346 A.2d 788, 789 (1975) (defining an indispensable party as “one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights”). Additionally, where a person’s official designee is already a party, the participation of such designee may alone be sufficient, as the interests of the two are identical, and thus, the participation of both would result in duplicative filings. See generally Leonard v. Thornburgh, 78 Pa.Cmwlth. 216, 218, 467 A.2d 104, 105 (1983) (en banc) (holding that the Governor need not participate in litigation involving a constitutional attack upon a tax statute, where his designee, the Secretary of the Department of Revenue, adequately represented his interests). The present case exemplifies another basis for con-' struing Section 7540(a) of the Declaratory Judgments Act subject to reasonable limitations: if that provision were applied in an overly literal manner in the context of constitutional challenges to legislative enactments containing a wide range of topics that potentially affect many classes of citizens, institutions, organizations, and corporations, such lawsuits could sweep in hundreds of parties and render the litigation unmanageable. It is true that all such parties would be affected, at least incidentally, by a declaration that the statute in question is unconstitutional. Here, for example, a declaration invalidating Act 230 would have some effect upon: all police officers within the Commonwealth; various entities affected by the new powers conferred upon the Parking Authority; individu ais and corporations associated with the taxi or limousine industries; redevelopment authorities throughout the Commonwealth, as well as the many contractors hired or potentially hired by such authorities; arbitrators involved in arbitration related to Philadelphia police and firefighters; and many more. However, requiring the joinder of all such parties would undermine the litigation process. The Wisconsin Supreme Court recognized this difficulty when construing language identical to that contained in Pennsylvania’s Declaratory Judgments Act in the context of a facial constitutional challenge to a local ordinance. That court indicated: We do not construe the statute as requiring that where a declaratory judgment as to the validity of a statue or ordinance is sought, every person whose interests are affected by the statute or ordinance must be made a party to the action. If it were so construed, the valuable remedy of declaratory judgment would be rendered impractical and indeed often worthless for determining the validity of legislative enactments, either state or local, since such enactments commonly affect the interests of large numbers of people. Town of Blooming Grove v. City of Madison, 275 Wis. 328, 81 N.W.2d 713, 717 (1957) (citing White House Milk Co. v. Thomson, 275 Wis. 243, 81 N.W.2d 725, (1957)). White House Milk Co. involved a similar question within the context of a facial constitutional challenge to a state enactment. After expressing sentiments similar to those quoted above, the court concluded: Therefore, we construe [the relevant section of the Uniform Declaratory Judgments Act] as not requiring the joinder as parties, in a declaratory action to determine the validity of a statute or ordinance, of any persons other than the public officers charged with the enforcement of the challenged statute or ordinance. Such defendant public officers act in a representative capacity in behalf of all persons having an interest in upholding the validity of the statute or ordinance under attack. White House Milk Co., 81 N.W.2d at 729. Accord North Side Bank v. Gentile, 129 Wis.2d 208, 385 N.W.2d 133, 136 (1986). We agree with the Wisconsin Supreme Court that requiring the participation of all parties having any interest which could potentially be affected by the invalidation of a statute would be impractical, for the reasons stated. Further, as such an interpretation would result in an unwieldy judicial resolution process, it would run contrary to the Legislature’s direction, as expressed in the text of the Declaratory Judgments Act, that the statute constitutes remedial legislation to be construed liberally so as to settle, and afford relief from, uncertainty relative to rights, status, and other legal relations. See 42 Pa.C.S. § 7541(a); see also 1 Pa.C.S. § 1922(1) (providing that the General Assembly does not intend a result which is unreasonable or incapable of execution). The question remains, however, whether Petitioners have joined all necessary parties under the circumstances of the present matter. In answering, we note initially that, in Pennsylvania, the Attorney General is the Commonwealth official statutorily charged with defending the constitutionality of all enactments passed by the General Assembly, see 71 P.S. § 732-204(3) (“It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes .... ”), regardless of the nature of the constitutional challenge or the opinion of any other state official concerning a given statute’s validity. As this is a facial constitutional attack upon an act of the General Assembly, the Attorney General stands in a representative capacity for, at a minimum, all non-Common wealth parties having an interest in seeing the statute upheld. Cf. Brown v. Butterworth, 831 So.2d 683, 689-90 & n. 9 (Fla.Dist.Ct.App.2002) (deeming the Attorney General of Florida the only indispensable party to an action challenging the constitutionality of Florida legislation). It is therefore significant that the Commonwealth and the Governor, both of whom are represented here by the Attorney General, are parties to this lawsuit. Still, it bears noting that this case is somewhat unusual in that the crux of the challenge centers, not upon any substantive aspect of the legislation at issue, but upon the procedure by which it was adopted. It could reason ably be argued, then, that the Legislature’s participation is necessary, as it has a general interest in defending the procedural regularity of the bills that it approves. Here again, however, the Presiding Officers and the Minority Leaders of both Houses of the General Assembly are named respondents; these officials are capable of representing the interests of the Legislature as a whole. As discussed, the guiding inquiry in any discussion of indispensability is whether justice can be done in the absence of the parties asserted to be necessary. Such an inquiry entails an assessment of the particular facts and circumstances presented in each case. Here, while it is true that the Act purports to alter the rights and obligations of numerous persons, due to the nature of the constitutional issues raised in the Complaint, achieving justice is not dependent upon the participation of all of those persons. Under the circumstances presented, where there is a facial constitutional challenge based upon Article Ill’s provisions relating to the form of passage of bills, we believe that substantial justice can be done without joining any parties other than those who are presently participating in the litigation. Accordingly, Petitioners’ failure to join PICA or any other entity potentially affected by the implementation of Act 230 does not deprive this Court of jurisdiction to determine the merits of their claims. B. Having determined that this Court has jurisdiction to determine Petitioners’ claims on the merits, we proceed to a consideration of those issues. 1. Article III, Section 3 challenges Counts I and II of the Complaint center on the twin requirements of Article III, Section 3, that each bill have only one subject, and that the subject be clearly expressed in the title. In these claims Petitioners allege that the expansion of SB 1100 by the Senate Rules Committee to include a myriad of subjects having little relationship to one another constitutes a violation of the single-subject rule. They allege further that the title of the final version of the bill failed to refer to large substantive changes contained in the body of that version, including the repeal of a portion of the PICA Act and the addition of a new chapter to the Pennsylvania Consolidated Statutes, namely, Chapter 58, relating to contractors’ bonds and financial security for redevelopment contracts. Petitioners contend that these failures in form and procedure deprived the public of adequate notice to participate in the legislative process, and the legislators of the opportunity to vote with circumspection. Respondents generally deny these allegations and argue that Act 230’s single subject is municipalities, that all of its provisions relate to this topic, and that the changes wrought by the bill are sufficiently reflected in its title. They point out that many sub-topics may be included in a bill, so long as they are all germane to a single general topic. We note at the outset that, as previously stated, an Act of the Assembly is presumptively valid; it will only be declared void if it violates the Constitution “clearly, palpably and plainly.” Commonwealth, Dep’t of Transp. v. McCafferty, 563 Pa. 146, 155, 758 A.2d 1155, 1160 (2000). Article Ill’s general purpose is “to place restraints on the legislative process and encourage an open, deliberative and accountable government.” Pennsylvania AFL-CIO ex rel. George v. Commonwealth, 563 Pa. 108, 119, 757 A.2d 917, 923 (2000). This Article was included in the Pennsylvania Constitution of 1874, which “was drafted in an atmosphere of extreme distrust of the legislative body and of fear of the growing power of corporations, especially the great railroad corporations. It was the product of a convention whose prevailing mood was one of reform.... ” R. Branning, Pennsylvania Constitutional Development 56 (1960) (quoted in Consumer Party, 510 Pa. at 178, 507 A.2d at 333); see also Snyder, Rise and Fall of the Enrolled Bill Doctrine, at 321 (stating that the 1874 Constitution has been referred to as the “Reform Constitution”). Although Section 3’s single-subject and clear-expression requirements were originally added to the Constitution by amendment in 1864, see Rogers v. Manufacturers’ Imp. Co., 109 Pa. 109, 110, 1 A. 344, 344 (1885), their inclusion in the 1874 Constitution was consistent with the electorate’s overall goal of curtailing legislative practices that it viewed with suspicion. See Woodside, Pa. Constitutional Law, at 295 (“The General Assembly and its enactment of laws was substantially changed in the Constitution of 1874.... Most of the evils which existed in the General Assembly of Pennsylvania and in the Congress of the United States were examined with the idea of correcting them in the new Constitution. The result is found in the required method of enacting legislation contained in Article III.”). Moreover, as these mandates survived the more recent constitutional revisions, they “continue to reflect important policies relating to the nature of the deliberative process.” Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. Pitt. L.Rev. 797, 800 (1987). Section 3’s restrictions serve a variety of ends. One is “to curb the practice of incorporating into one bill a variety of distinct and independent subjects of legislation and intentionally disguising the real purpose of the bill by a misleading title or by the comprehensive phrase ‘and for other purposes.’ ” Charles W. Rubendall II, The Constitution and the Consolidated Statutes, 80 Dick L.Rev. 118, 120 (1975). Such omnibus bills, as they were then known, permitted the passage of hidden legislation and allowed “logrolling” — that is, “embracing in one bill several distinct matters, none of which could singly obtain the assent of the legislature, and procuring its passage by combining the minorities who favored the individual matters to form a majority that would adopt them all.” Id. As a corollary, the single-subject requirement prevents the attachment of riders which could not become law on their own to popular bills that are certain to pass. See generally DeWeese v. Weaver, 824 A.2d 364, 369 (Pa.Cmwlth. 2003). Also, a bill addressing a single topic is more likely to obtain a considered review than one addressing many subjects. See id. (citing Millard H. Ruud, No Law Shall Embrace More Than One Subject, 42 Minn. L.Rev. 389, 391 (1958)). In practice, Section 3’s dual requirements — clear expression and single subject — are interrelated, as they both act to proscribe inserting measures into bills without providing fair notice to the public and to legislators of the existence of the same. See Rogers, 109 Pa. at 112, 1 A. at 346 (striking down an act whose title appeared designed to prevent popular opposition to the bill by concealing its true effects); Pennsylvania State Lodge v. Commonwealth, 692 A.2d 609, 615 (Pa. Cmwlth.1997) (relating that the purpose of Section 3 is to provide public notice of all proposed legislative enactments and to prevent the passage of “sneak” legislation). On the other hand, bills are frequently amended as they pass through the Legislature, and not all additions of new material are improper. Rather, the strictures of Article III, Section 3 are often satisfied where the provisions added during the legislative process assist in carrying out a bill’s main objective or are otherwise “germane” to the bill’s subject as reflected in its title. See L.J.W. Realty Corp. v. City of Phila., 390 Pa. 197, 206 n. 8, 134 A.2d 878, 883 n. 8 (1957); Mallinger v. City of Pittsburgh, 316 Pa. 257, 261, 175 A. 525, 526 (1934). In the early part of the Twentieth Century, this Court applied the “germaneness” test in a fairly strict manner. In Commonwealth ex rel. Woodruff v. Humphrey, 288 Pa. 280, 291, 136 A. 213, 217 (1927), for example, the Court concluded that a bill regulating land surveyors and “professional engineers” contained two subjects because, although both professions were regulable, they were not the same profession. The Court stated that if the bill had simply defined the term “professional engineer” broadly to include land surveyors, a different result would have obtained. See id. Similarly, in Yardley Mills Co. v. Bogardus, 321 Pa. 581, 185 A. 218 (1936), this Court considered an Article III, Section 3 challenge to legislation containing three separate provisions, all pertaining to water canals in the Commonwealth: the first relieved canal companies of the obligation to maintain waterways obtained from the Commonwealth; the second granted such companies the right to sell the water for commercial purposes; and the third authorized the Commonwealth to acquire canal lands by gift and to sell portions of them. Although all of these measures pertained to the subject of water canals, this Court concluded that the three provisions were not sufficiently germane to one another to survive scrutiny under the single-subject test. See id. at 589, 185 A. at 221; cf. Rogers, 109 Pa. at 112, 1 A. at 346 (invalidating a bill entitled, “An act to incorporate the Manufacturers’ Improvement Company,” in part because its conferral of timber severance and waterway rights was deemed non-germane to the subject of manufacturing). But cf. Commonwealth ex rel. Bell v. Powell, 249 Pa. 144, 94 A. 746 (1915) (upholding a statute regulating motor vehicles, although one section of the act merely provided for disposition of the funds derived from license and registration fees; such disposition was said to follow naturally from the fee-collection provision). In more recent decisions, however, and despite the continued strong public policy underlying the single-subject requirement, some Pennsylvania courts have become extremely deferential toward the General Assembly in Section III challenges. As Respondents suggest, they have tended to apply the single-subject standard to validate legislation containing many different topics so long as those topics can reasonably be viewed as falling under one broad subject. While this trend is consistent in principle with some early pronouncements of this Court, see, e.g., Kotch v. Middle Coal Field Poor Dist., 329 Pa. 390, 399, 197 A. 334, 339 (1938) (“Plurality of subjects is not objectionable so long as they are reasonably germane to each other.”), it has resulted in a situation where germaneness has, in effect, been diluted to the point where it has been assessed according to whether the court can fashion a single, overarching topic to loosely relate the various subjects included in the statute under review. Thus, in Common Cause, a bill was introduced amending Title 75 (the Vehicle Code) to provide for certain vehicle registration periods. Over the course of its life in the General Assembly, the bill expanded to include a variety of other measures, such as amendments to Title 74 (relating to transportation), as well as provisions pertaining to vehicle inspections, vehicle towing, public transportation, fuel taxes, competitive procurement for the Public Transportation Assistance Fund, and the distribution of State highway maintenance funds. See Common Cause, 710 A.2d at 112-13. The Commonwealth Court upheld the statute, stating that all of its provisions were germane to the general subject of vehicular transportation, see id. at 120, and this Court summarily affirmed, see Common Cause/Pennsylvania v. Commonwealth, 562 Pa. 632, 757 A.2d 367 (2000) (per curiam). Similarly, in City of Phila. v. Schiveiker, 817 A.2d 1217 (Pa.Cmwlth.2003), the Commonwealth Court approved legislation relating to municipalities that also affected parking authorities, stating that the two topics were “inextricably intertwined” and that the overall subject of the legislation was “authorities that benefit municipalities.” Id. at 1225; see also Fumo v. Public Util. Comm’n, 719 A.2d 10, 14 (Pa.Cmwlth.1998) (upholding a bill which originally increased the number of years that a taxicab could be operated, but was subsequently amended to include deregulation of electricity generation, as both topics amended the Public Utility Code and dealt with public utility regulation); Pennsylvania Chiropractic Fed’n v. Foster, 136 Pa.Cmwlth. 465, 474, 583 A.2d 844, 848 (1990) (upholding legislation amending the Crimes Code, Judicial Code, and Vehicle Code, where all such amendments advanced the statute’s goal of restructuring auto insurance regulation and reducing the cost of such insurance). But see Pennsylvania Ass’n of Rental Dealers v. Commonwealth, 123 Pa.Cmwlth. 533, 540, 554 A.2d 998,1002 (1989) (rejecting an argument that all the challenged amendments were germane to the single topic of the “economic well being of the Commonwealth,” as that would render the germaneness test meaningless); DeWeese, 824 A.2d at 370 (rejecting the position that expunging criminal DNA records and apportioning negligence liability are both germane to the single subject of “the business of the courts”). We believe that exercising deference by hypothesizing reasonably broad topics in this manner is appropriate to some degree, because it helps ensure that Article III does not become a license for the judiciary to “exercise a pedantic tyranny” over the efforts of the Legislature. In re Com., Dep’t of Transp., 511 Pa. 620, 626, 515 A.2d 899, 902 (1986). There must be limits, however, as otherwise virtually all legislation, no matter how diverse in substance, would meet the single-subject requirement. See Payne v. School Dist. of Borough of Coudersport, 168 Pa. 386, 389, 31 A. 1072, 1074 (1895) (per curiam) (indicating that “no two subjects are so wide apart that they may not be brought into a common focus, if the point of view be carried back far enough”). In that event, Section 3 would be rendered impotent to guard against the evils that it was designed to curtail. Such vices reflect temptations which, being inherent to the law-making process, are present in every era. Historically, procedural limitations such as those contained in Article III, Section 3 did not appear in the first state constitutions. Instead, they were adopted throughout the nineteenth century in response to perceived state legislative abuses. One observer during that era noted that ‘[o]ne of the most marked features of all recent State constitutions is the distrust shown of the Legislature.’ Last-minute consideration of important measures, logrolling, mixing substantive provisions in omnibus bills, low visibility and hasty enactment of important, and sometimes corrupt, legislation, and the at tachment of unrelated provisions to bills in the amendment process — to name a few of these abuses — led to the adoption of constitutional provisions restricting the legislative process. These constitutional provisions seek generally to require a more open and deliberative state legislative process, one that addresses the merits of legislative proposals in an orderly and rational manner. Williams, State Constitutional Limits on Legislative Procedure, at 798 (quoting Eaton, Recent State Constitutions, 6 Harv. L.Rev. 109, 109 (1892)). Consistent with this background, the Constitution plainly establishes limitations on the Legislature’s discretion in this area. The legislation presently under review implicates many of the concerns quoted above. In its 127 pages, SB 1100 contains voluminous and varying provisions: many are substantial, most appeared at the last minute, and some are only hinted at in the title in the vaguest of terms (e.g., “making repeals”), if at all. Thus, if “[t]he purpose of the constitutional requirements relating to the enactment of laws [is] to put the members of the Assembly and others interested on notice, by the title of the measure submitted, so that they might vote on it with circumspection,” Scudder v. Smith, 331 Pa. 165,170-71, 200 A. 601, 604 (1938) (emphasis removed), that objective was not fulfilled here. The Act’s title states that one object — perhaps the primary object — of the statute is to amend Title 53 of the Pennsylvania Consolidated Statutes, which pertains to municipalities generally. The body of the bill, as well, contains various provisions affecting municipalities in some fashion, sometimes only indirectly. Significantly, however, there is no single unifying subject to which all of the provisions of the act are germane. See Payne, 168 Pa. at 389, 31 A. at 1074 (suggesting that the test under Section 3 is whether two disparate subjects constitute parts of a unifying scheme to accomplish a single purpose). It is not readily apparent, for example, that restricting the political activities of police officers has any logical or legislative nexus to authorizing parking authorities to undertake mixed-use development projects; or that imposing a citizenship requirement for board members of business improvement districts relates to transferring authority over Philadelphia’s taxis and limousines from the Public Utility Commission to the Philadelphia Parking Authority; or that any of these provisions are pertinent to the repeal of Section 209(k) of the PICA Act or to authorizing municipalities to hold gifts in trust. Respondents state that all such provisions relate to “municipalities,” but, as virtually all of local government is a “municipality,” we find that proposed subject too broad to qualify for single-subject status under Article III, Section 3. Whether or not it is akin to the “the business of the courts” or “the economic well being of the commonwealth”— proffered topics which, as noted, have been deemed overly broad to constitute a single subject for constitutional purposes — “municipalities” is the subject of an entire Title of the Pennsylvania Consolidated Statutes. By purporting to make general and diverse changes to that topic, with no other qualifications, SB 1100 is in substance an omnibus bill, whether or not it is called that in name. Even were we to accept “municipalities” as the overarching subject of the act, moreover, a change in the composition of the Pennsylvania Convention Center Authority’s governing board cannot readily be deemed germane to that topic, as the Convention Center is not a municipal authority, but rather, an instrument of the Commonwealth. Indeed, although respondent Convention Center Authority maintains that the “general subject matter of SB 1100 at all times was municipalities,” Brief at 33, in arguing that the City lacks standing, it stresses that Convention Center Authority is an instrument of the Commonwealth and not of any municipality. See id. at 27. We agree with this latter assessment because, while the convention center statute indicates that the building housing conventions is to be located in Philadelphia, that legislation also clarifies that the Convention Center Authority is a Commonwealth authority created to serve state-wide interests, and not a municipal authority, see generally 53 Pa.C.S. §§ 5902-5923; 53 P.S. §§ 16201-16224 (repealed and recodified as amended at 53 Pa.C.S. §§ 5902-5923), and that that some of its governing members must be from outside of Philadelphia. See, e.g., 58 Pa.C.S. § 5911(a)(1) (requiring that several board members be residents of counties other than Philadelphia County); 53 P.S. § 16211(a)(1), (2) (repealed) (requiring, inter alia, that some of the Governor-appointed board members represent the interests of the Commonwealth at large, and that others be residents of counties other than Philadelphia County). Therefore, based upon this example alone, Act 230 cannot reasonably be deemed to pertain only to the single topic of municipalities, and thus, cannot be seen as containing only a single subject for purposes of Article III, Section 3. Finally, that all of the statute’s provisions are ultimately codified within Title 53 is of little constitutional importance. Cf. DeWeese, 824 A.2d at 370 (“The fact that the changes in substantive law ... were set forth as amendments to the Judicial Code does not, in and of itself, satisfy the requirements of Article III, Section 3.”). Respondent Convention Center Authority argues, however, that Act 230 is constitutional because it is a “codifying and compiling bill.” The Authority’s position appears to be that the statute is exempted from the single-subject requirement under Section 3’s exception for bills “codifying or compiling the law or a part thereof.” See supra note 4. In this regard, the Authority takes issue with a portion of the Commonwealth Court analysis in which it noted that appropriation bills, which are also included within Section 3’s exception to the one-subject rule, see id., are separately constrained to a single subject under Section 11. See Pa. Const, art. III, § 11 (“The general appropriation bill shall embrace nothing but appropriations for the executive, legislative and judicial departments of the Commonwealth, for the public debt and for public schools. All other appropriations shall be made by separate bills, each embracing one subject.”) The Commonwealth Court reasoned that Section 11 was intended to restrict the power of the legislature as a trade-off for the appropriation-bill exemption in Section 3, and stated that, while a codification bill is not constitutionally defined, “by analogy” the same limits should apply to them. See Commonwealth Ct. op. at 19-20. Initially, we note that Act 230 is not a compiling bill, as it does not purport merely to compile existing statutory law unaltered from its original substance. See Rubendall, Constitution and Consolidated Statutes, at 126-27 (explaining the difference between codifications and compilations). See generally Joel Fishman, A History of Statutory Compilations in Pennsylvania, 86 Law Libr. J. 559 (1994). Further, Act 230 does not merely consolidate existing legislation into Title 53 of the Pennsylvania Consolidated Statutes. Rather, it both amends a Consolidated Statute and purports to consolidate existing law. While SB 1100 is thus a bill that, at least in part, “codifies ... the law,” it does not follow that the bill necessarily comes within Section 3’s exception to the single-subject requirement. To understand why, it is helpful to review the historical development of the codification of Pennsylvania statutes, and its relationship to Article III, Section 3. Prior to 1970, Pennsylvania had a large and unwieldy body of uncodified statutory law. In his treatise, Judge Robert E. Woodside observed: Much of our law, civil and criminal, developed in the [Nineteenth CJentury as part of the common law, but during [the Twentieth Cjentury more and more statutes replaced the common law. Unlike the so-called “code states” which from their formation depended solely upon an organized single code containing all the statutory law of that state, Pennsylvania’s statutes “grew like Topsy.” As a result, the only way to find the statutes on a particular subject was through digests such as West’s Statutes and, more recently, Purdon’s Pennsylvania Statutes. Purdon’s has seved [sic] the profession well becoming “the Bible” of the statutory law, but the “official” statues are in the Pamphlet Laws and not Purdon’s. Although no attempt was made to officially codify the entire body of the law, many specific subjects were codified, such as in the Vehicle Code, the Crimes Code, the Commercial Code, the numerous municipal codes, and many, many others. Woodside, Pa. Constitutional Law, at 307. These pre-1970 codifications merely represented attempts to classify and collect statutes, and did not result in true consolidated statutes. One hindrance to consolidation may have been the single-subject requirement of Section 3 — which originally did not exempt codifications or compilations — -and the underlying concerns it represented. See Clark, Introduction to Pennsylvania Consolidated Statutes, at 14 (“The principal adverse comment expressed concerning codification is that ultimately it could re-establish the ‘logrolling’ practices outlaws by the single subject requirement of Article III, § 3 of the Constitution of Pennsylvania.”). Thus, in 1967, the exception for any “bill codifying or compiling the law or a part thereof’ was added to Section 3. Thereafter, in 1970, the General Assembly enacted a general “code” known as the Pennsylvania Consolidated Statutes, which was originally the structural framework for the eventual consolidation of all Pennsylvania statutes — that is, a kind of “skeleton ... given body by addition of substantive provisions drafted as amendments to Act 230 [of 1970] under appropriate title headings.” Rubendall, Constitution and Consolidated Statutes, at 130. Since 1970, the Legislature has added some of the pre-existing codes to the Consolidated Statutes and has created other titles. The scope of Section 3’s exception must be construed consistent with the reason it came into being. “What the amendment has done is authorize the adoption of the Consolidated Statutes and remove all doubt about the constitutionality of the existing codes.” Woodside, Pa. Constitutional Law, at 309. Such bills often contain more than one subject, but, because they do not effect substantive changes in the law, they lack the potential for mischief that Section 3 was intended to remedy. Thus, we do not believe that the electorate, in approving the amendment to Section 3, intended to give the Legislature license to include, within any bill consolidating an existing statute, unrestricted substantive revisions to the law unrelated to the process of codification, as otherwise the one-subject provision would be of little value. As Judge Woodside has explained: Legislators and the professional draftsmen have avoided the position that an amendment to the Pennsylvania Consolidated Statutes can contain more than one subject clearly expressed in its title as that provision has been construed by the courts. They recognize, as every official should, that it was not the intent of the language added to the section in 1967 to write out of the Constitution the one-subject provision which has been so valuable to the orderly operation of the legislature in this Commonwealth. Id.; accord DeWeese, 824 A.2d at 370-71. In light of the above, we conclude that the exception to the single-subject requirement for legislation “codifying ... the law or a part thereof’ pertains to bills which codify the law and make only such alterations in form and content as are necessary to effect the codification. See id. at 370 n. 14 (“The goals of the single subject rule, such as preventing logrolling, do not pertain where laws that have previously been enacted are simply being readopted in codified form, with revisions to the language of the prior enactments made only as needed to create a unified body of law by harmonizing conflicts, filling omissions and otherwise clarifying the existing law that goes into the code.”) The statute presently under review does not fit this description. As discussed above, it was originally introduced to make amendments to Title 58 of the Consolidated Statutes and, prior to the final amendment by the Senate Rules Committee, was altered several times to make various substantive legal changes within that Title. Thereafter, the amendments inserted by the Senate Rules Committee, among other things, codified and revised the Pennsylvania Convention Center Authority Act of 1986. The Convention Center Authority is correct, then, that a portion of the final bill operated to consolidate some existing law, namely, the Convention Center Authority Act. However, it also amended that statute beyond what was necessary to effect the codification, and further, made many additional substantive revisions to other areas of Pennsylvania statutory law unrelated to the process of codification. Accordingly, Act 230 is not exempted from Section 3’s single-subject requirement pursuant to that provision’s express exception for codification bills. Nor are we persuaded by the Convention Center Authority’s argument that the absence of any constitutional provision extrinsic to Section 3 defining the parameters of a permissible codification bill (which would perform a similar function to that which Section 11 performs for appropriation bills) indicates an intent not to apply the single-subject restriction to any bill which codifies in part. In making this argument, the Authority overlooks an important distinction between appropriation bills and codification bills: a legislative appropriation constitutes substantive law, as it allocates money, whereas a legislative codification leaves existing substantive law unchanged. There is thus a need for independent constraints upon appropriation bills — which by nature contain more than one subject, and hence, had to be exempted from Section 3’s one-subject requirement — in order to prevent the logrolling and omnibus-style abuses that Section 3 was designed to guard against. See Commonwealth ex rel. Attorney General v. Barnett, 199 Pa. 161, 172, 48 A. 976, 977 (1901); Commonwealth ex rel. Greene v. Gregg, 161 Pa. 582, 587, 29 A. 297, 298 (1894). See generally Common Cause of Pa. v. Commonwealth, 668 A.2d 190, 197 (Pa.Cmwlth.1995) (describing the “trade-off’ whereby legislative power was restricted by Section 11 in exchange for the exclusion of appropriation bills from the prohibitions of Section 3), aff'd per curiam, 544 Pa. 512, 677 A.2d 1206 (1996). The same concerns are absent as to bills which merely codify existing law, even if more than one subject is codified by a single bill. For the reasons expressed above, we find that SB 1100 violates Section 3’s prohibition against multi-subject bills. As it would be arbitrary to preserve one set of provisions germane to one topic, and invalidate the remainder of the bill, we have no choice but to conclude that Act 230 must be declared unconstitutional in its entirety. 2. Article I, Sections 1, k and 6 challenges As discussed, in addition to challenging the validity of SB 1100 under Article III, Section 3, Petitioners assert that SB 1100 violates Article III, Sections 1, 4 and 6 of the Pennsylvania Constitution. As we have already determined that the bill must be invalidated in its entirety under Section 3, we need not reach these claims. III. Having found that Act 230 is inconsistent with Article III, Section 3, it remains to determine the proper remedy. While the provisions of the statute cannot stand on their present foundation, as a consequence of the automatic supersedeas the legislation has remained in effect pending the outcome of this litigation. Although there is no information in the record before us concerning what activities have been undertaken in conformity with the provisions of the statute, we are inclined to exercise caution by assuming that some have already occurred — such as reconstitution of the governing board of the Convention Center Authority, a transfer of regulatory authority over taxis and limousines to the Philadelphia Parking Authority, and commencement of mixed-use development projects by the Parking Authority — which cannot readily or immediately be undone. Moreover, our decision here pertains to the way in which the legislation authorizing these changes was passed; nothing in this Opinion precludes the General Assembly from enacting similar provisions in a manner consistent with the Constitution. Thus, rather than presently disturbing the status quo and risking circumstances of ongoing flux, we think it best to stay our decision for ninety days in order to afford time for the Legislature to consider appropriate remedial measures, or to allow for an orderly transition. Accordingly, Petitioners are awarded declaratory relief as delineated above. This mandate is stayed for a period of ninety days. Jurisdiction is relinquished. . Act of June 5, 1991, P.L. 9, No. 6 (as amended, 53 P.S. §§ 12720.101-12720.709) (the. "PICA Act”). The PICA Act’s purpose is to provide a mechanism for cooperation between the Commonwealth and financially distressed cities of the first class (i.e., Philadelphia), so as to foster such cities’ fiscal integrity and to assure that they: provide for the health, safety and welfare of their citizens; meet their financial obligations with respect to their lenders, employees, vendors and suppliers; and utilize proper financial planning procedures and budgeting practices. See 53 P.S. § 12720.102. . Act of May 2, 1945, P.L. 382, No. 164 (as amended, 53 Pa.C.S. §§ 5601-5622). . The Center was established in 1986 by the Pennsylvania Convention Center Authority Act, see Act of June 27, 1986, P.L. 267, No. 70 (as amended 53 P.S. §§ 16201-16224). Under the terms of that statute, the Mayor of Philadelphia appointed two members to the Center’s governing board, the City Council of Philadelphia appointed two members, and the Governor appointed four members. See 53 P.S. 16211(a). Under Act 230, in addition to the four individuals selected by the Mayor and Council of Philadelphia, the Presiding Officers and Minority Leaders of the General Assembly each appoint a board member, and each county in the Philadelphia metropolitan area (other than Philadelphia County) appoints one of its residents to serve as well. See 53 Pa.C.S. § 5911(a). . Article III, Section 1 states: No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose. Article III, Section 3 states: No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or part thereof. Article III, Section 4 states: Every bill shall be considered on three different days in each House. All amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill and before the final vote is taken, upon written request addressed to the presiding officer of either House by at least 25% of the members elected to that House, any bill shall be read at length in that House. No bill shall become law, unless on its final passage the vote is taken by yeas and nays, the names of the persons voting for and against it are entered on the journal, and a majority of the members elected to each House is recorded thereon as voting in its favor. Article III, Section 6 states: No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. Pa. Const art. Ill, §§ 1, 3, 4, 6. . After Speaker Ryan died on March 29, 2003, the Honorable John M. Perzel, present Speaker of the House, was substituted for him as a respondent. . They assert, for example, that: with the repeal of Section 209(lc) of the PICA Act, the City cannot estimate its future obligations relative to its uniformed personnel, which in turn hinders its development of a financial plan through which it could receive Commonwealth funds as a distressed first-class city; the City has lost control over Convention Center expenditures that it is required to fund via tax revenues; the changes effected by Act 230 damage the Convention Center’s reputation, which in turn will adversely affect the City’s hospitality sector; the change in Convention Center management jeopardizes the collective bargaining process currently ongoing with the unions whose members perform work at the center — and any harm to the Convention Center is harm to the City because the two are economically intertwined; the grant of new powers to the Parking Authority will reduce that entity’s excess revenues which would otherwise flow into city coffers; the expansion of bonding requirements for small contractors will thwart the progress of minority-owned companies performing redevelopment projects in the City’s blighted neighborhoods; and all of these changes undermine the City’s reputation as a desirable place to live and work. See Brief at 7-12. . Here, the "law” in question consists of the state constitutional provisions under which Petitioners have brought their challenge. . Because of our conclusion that the City has standing, we need not consider whether Mayor Street also has standing. . Indeed, the Presiding Officers concede that, the enrolled bill doctrine would not preclude a merits resolution of an Article III, Section 3 challenge, as the only evidence necessary is the enrolled bill itself. See Brief of Presiding Officers at 15 n. 8. . Petitioners did not sign the Stipulation, but stated at the preliminary injunction hearing that they agreed with all of the facts recited in it. All other parties signed the Stipulation. . The relevant analysis is sometimes said to require examination of the following factors: "1. Do absent parties have a right or interest related to the claim? 2. If so, what is the nature of that right or interest? 3. Is that right or interest essential to the merits of the issue? 4. Can justice be afforded without violating the due process rights of absent parties?” Mechanicsburg Area Sch. Dist. v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981). These are implicitly considered in the analysis that follows. . Act of July 9, 1976, P.L. 586, No. 142, § 2 (as amended, 42 Pa.C.S. §§ 7531-7541). . The present Declaratory Judgments Act replaced and recodified Pennsylvania's prior act, which was derived from the Uniform Declaratory Judgments Act. See Act of June 18, 1923, P.L. 840 (as amended, 12 P.S. §§ 831-846) (repealed). The relevant provision pertaining to necessary parties — which is also reflected in the Wisconsin statute — remained the same. See Uniform Declaratory Judgments Act, § 11 (Parties). . See also Pa.R.C.P. 235 (providing for mandatory notice to the Attorney General in any proceeding challenging the constitutionality of an Act of the General Assembly); Pa.R.A.P. 521 (requiring notice to the Attorney General if the constitutionality of a statute is challenged on appeal). . This Court recently entered per curiam order in City of Phila. v. Philadelphia Parking Auth., 568 Pa. 430, 798 A.2d 161 (2002), a dispute in which the City challenged the validity of a statute granting the Governor of Pennsylvania authority to appoint a majority the Philadelphia Parking Authority’s board members. While the order in question directed the Commonwealth Court to resolve the underlying constitutional challenge on the merits, see id. at 431, 798 A.2d at 162, several Justices of this Court filed accompanying statements addressing, inter alia, whether the Governor was an indispensable party to the litigation. All referred to the CRY/Kline standard, but with varying results. Mr. Justice Castille, joined by Mr. Justice Nigro, opined that the Governor was indeed a necessary party, in part because his appointment powers under the challenged legislation were the "sine qua non ” of the dispute. See id. at 434, 798 A.2d at 164 (Castille, J., concurring). This author, by contrast, suggested that the Governor was not indispensable to the litigation because, once he had exercised his appointment powers, he maintained no further direct role in the implementation of the statute, thus rendering his interests insufficiently immediate and direct. See id. at 447-48, 798 A.2d at 172 (Saylor, J., concurring). Chief Justice Zappala, joined by then-justice Cappy, now Chief Justice, stated that the Governor’s appointive powers were not essential to a disposition of the substantive issues on the merits, and indicated that the "sheer number of gubernatorial appointments” made pursuant to Pennsylvania statutes and administrative regulations would render troublesome any holding that the Governor was indispensable. See id. at 467-68, 798 A.2d at 184 (Zappala, C.J., dissenting). In the present case, the Governor was made a party, and thus, we need not decide whether his participation is affirmatively required. Moreover, as none of the persons that Respondents claim are indispensable are Commonwealth parties, the disagreement reflected in Philadelphia Parking Auth. is not implicated here. . While Florida’s declaratory judgment statute provides that parties with a claim or interest "may,” rather than “shall,” be made parties, it goes on to state, similar to Pennsylvania’s, that “[n]o declaration shall prejudice the rights of persons not parties to the proceedings.” Fla. Stat. § 86.091. . As noted, however, the effects of the Act's provisions are relevant to a determination of whether Petitioners have standing. . It has been suggested that an additional benefit of the single-subject mandate is to protect the integrity of the Governor's veto power, which, except in the case of appropriation bills, see Pa Const, art. IV, § 16, may only be employed to disapprove bills in their entirety. Thus, if the Governor wishes to prevent portions of a bill from becoming law, he must veto the entire statute although it may contain other provisions that he favors. See Williams, State Constitutional Limits on Legislative Procedure, at 809. This would also be true, although to a lesser degree, with single-subject legislation. . That case is presently on appeal to this Court. See City of Philadelphia v. Schweiker, 12 EAP 2003. . Petitioners advance a reductio ad absurdum argument in this regard, and indicate that all legislation pertains to the single subject of “law.” . The author explains: A code has been defined as a complete system of positive law, scientifically arranged and promulgated by legislative authority. Drafting a code includes compiling existing laws, systematically arranging them into chapters, subheads, tables of contents, and indexes, harmonizing conflicts, supplying omissions, and generally clarifying and completing a body of laws designed to regulate exhaustively the subjects to which it relates. A compilation, on the other hand, is merely an arrangement and classification of legislation in the exact form and wording in which it was enacted originally. It simply brings together in convenient form the various acts of the legislature over a period of time. Thus, a code is quite different from a compilation. A code is broader in scope and more comprehensive in purpose. Its general object is to embody, as nearly as practicable, all the statutory laws of a governmental entity. When properly adopted by the legislature, a code is more than prima facie evidence of the law; it is positive law itself. An officially or privately prepared compilation, however, is published only to facility discovery of the law. Usually a compilation does not eliminate repealed laws; instead it collects all laws on the same subject regardless of their operative effect. Even when a compilation has been given legislative approval, it does not affect the status of the law: final authority remains in the statutes as originally enacted. Rubendall, Constitution and Consolidated Statutes, at 126-27 (footnotes omitted). Accord William H. Clark, Jr., Introduction to the Pennsylvania Consolidated Statutes, at 6-7 (reproduced at 1 Pa.C.S., introductory text). . Act of November 25, 1970, P.L. 707, No. 230 (as amended, 1 Pa.C.S. §§ 101-306). . We contrast this situation with cases in which the title contains a single subject, and the Court strikes down only that portion of the bill which is not pertinent to that subject as violative of Section 3’s clear expression requirement. See, e.g., In re Phillips’ Estate, 295 Pa. 349, 353, 145 A. 437, 438 (1929); Strain v. Kern, 277 Pa. 209, 211, 120 A. 818, 819 (1923). Here, the multiple subjects, including the changes to the Convention Center Authority Act, are reflected in the bill’s title.

Mr. Justice Gordon delivered the opinion of the court The plaintiffs’ bill was summarily dismissed by the court below, on the ground that they had an adequate remedy at law. In this ifc overruled the Master, who, though finding the facts in favor of the defendant, yet was of the opinion that the bill should be retained until the stock, which the defendant had received from the Brush company, in execution of the contract of the 31st of March, 1883, should be returned. In this he was undoubtedly correct, and the court erred in not adopting his recommendation. Equitable jurisdiction does not depend on the want of a common law remedy, for whilst there may be such a remedy it may be inadequate to meet all the requirements of a given case, or to effect complete justice between the contending parties, hence, the exercise of chancery powers must often depend on the sound discretion of the court: Bierbower’s Appeal, 11 Out., 14. So a bill may be sustained solely on the ground that it is the most convenient remedy: Kirkpatrick v. McDonald, 1 Jo., 387. But the bill, in this ease, prays for the specific execution of the contract of the 31st of March, 1883; a contract which, according to the finding of the Master, the defendant company might elect either to affirm or rescind. If it chose to affirm, an account became necessary, for there was no convenient method of ascertaining the number of carbons bought from other parties than the Brush company, except by the books, bills and other evidence within the power of the defendant. If, on the other hand, a rescission should be preferred, then it is clear that the plaintiffs must be restored to the status which they occupied „at the date of the contract. In execution of this contract, and as part of its consideration, the Brush company assigned to the Allegheny company some fifty-five hundred dollars’ worth of the stock of the latter, and we agree with the Master, that this bill ought not to be dismissed until that stock is returned. But the above narrative establishes the fact that the common law remedy of covenant cannot be used, in any view of this case, to adjust the rights of the parties, and administer specific justice. Whilst this remedy has been, and may still be used to enforce the performance of a contract, yet a more inconvenient and inefficient one could scarcely be devised, so that since our courts have been clothed with equity powers it is seldom or never resorted to. We have, therefore, no hesitation in agreeing with the learned Master, that the plaintiffs’ remedy at law is not complete, adequate and satisfactory; that the damages sustained by them can be better found and adjusted by a master than by a jury, and that the defendant should be put to an account should it fail to return the stock. With reference to the Master’s finding of facts, we cannot undertake to say that he has committed any serious error, though we would not go as far as the court has done in saying that he might well have found that the word “ carbons ” had been fraudulently inserted, by the plaintiffs, in the1 contract of 1888. It.certainly was enough to say,-that not being in accord with the resolution of February 3d, and having been inadvertently overlooked at the time of signing, it was not to be regarded as part of the defendant’s, contract. Nor is it altogether clear that the mistake thus found was of such a character as should rescind the contract, for if the defendant’s officers executed it without examination, notwithstanding the opportunity that was afforded them of so doing; if it was, indeed, as the Master reports, laid before the defendant's directors before its'execution, and if there was no fraud on part of the plaintiffs, we can scarcely see how the mistake can be attributed to anything but the supine negligence of the defendant’s agents. This, however, being a matter for the consideration of the court below, we forbear to dwell upon it. The decree is now reversed at the costs of the appellee, and the court is directed to proceed to a final decree.

OPINION Chief Justice ZAPPALA. We granted allowance of appeal in this case to determine whether the Superior Court erred in affirming the denial of Appellant’s petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46, when it deemed all of Appellant’s issues waived due to counsel’s failure to file a Statement of Matters Complained of on Appeal, pursuant to Pa.R.A.P.1925(b). For the reasons that follow, we affirm. On November 17, 1995, a jury convicted Appellant of murder of the first degree, robbery, and criminal conspiracy. The trial court sentenced Appellant to life imprisonment for the first degree murder conviction, along with two concurrent sentences of five to ten years’ imprisonment for the robbery and conspiracy convictions. The Superior Court affirmed, Commonwealth v. Butler, 706 A.2d 1249 (Pa.Super.1997) (unpublished memorandum), and Appellant did not seek allowance of appeal to this Court. Appellant filed a pro se PCRA petition on February 26, 1998. Alter the PCRA court appointed counsel, Appellant filed an amended petition. The PCRA court dismissed Appellant’s amended petition without a hearing and Appellant filed a notice of appeal with the Superior Court. On June 25,1999, the PCRA court ordered Appellant to file a Statement of Matters Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b). Appellant failed to file a Rule 1925(b) statement. As a result, the PCRA court issued an opinion that addressed only the claims raised in the amended PCRA petition. The Superior Court affirmed in a published opinion. Commonwealth v. Butler, 756 A.2d 55 (Pa.Super.2000). Relying on this Court’s decision in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), the court reasoned that it could “only conduct meaningful review where the appellant writes a Rule 1925(b) statement and the court below ... responds to those issues in its opinion.” Butler, 756 A.2d at 58. Accordingly, the court held that appellants will face waiver if they fail to comply with a court’s order to file a Rule 1925(b) statement. Id. In light of Appellant’s failure to file a Rule 1925(b) statement, the Superior Court deemed all of Appellant’s issues waived and affirmed the denial of Appellant’s amended PCRA petition. Id. We granted Appellant’s petition for allowance of appeal, limited to the issue of whether the Superior Court erred in deeming all of Appellant’s issues waived due to his failure to file a Rule 1925(b) statement. Commonwealth v. Butler, 564 Pa. 471, 769 A.2d 442 (2001). As the Commonwealth never raised Rule 1925 waiver, Appellant argues that the Superior Court improperly deemed his issues waived sua sponte. As promulgated by this Court, Pennsylvania Rule of Appellate Procedure 1925 provides, in pertinent part: (a) General rule. Üpon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found. (b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of. Prior to our decision in Lord, the intermediate appellate courts seized upon an apparent vest of discretion contained in the language of Rule 1925: “A failure- to comply with such direction may be considered by the appellate court as a waiver....” Pa.R.A.P.1925(b) (emphasis added). As a result, courts enforced waiver under Rule 1925 by determining whether they could conduct a “meaningful review” despite an appellant’s failure to either file a Rule 1925(b) statement or include certain issues within a filed statement. In Lord, however, this Court eliminated any aspect of discretion and established a bright-line rule for waiver under Rule 1925: “[I]n order to preserve their claims for appellate review, [ajppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement mil be deemed waived.” Lord, 719 A.2d at 309 (emphasis added). Thus, waiver under Rule 1925 is automatic. The same is true in PCRA appeals, despite the recitation of issues within a PCRA petition. As we noted in Lord, the purpose of Rule 1925 is “to aid trial judges in identifying and focusing upon those issues that the parties plan to raise on appeal.” Id. at 308; see also Commonwealth v. Johnson, 565 Pa. 51, 771 A.2d 751, 755 (2001) (Opinion Announcing the Judgment of the Court). As the Superior Court cogently observed, PCRA petitions fail to serve that purpose. Here, the claims in Appellant’s amended PCRA petition were identical to the issues that Appellant ultimately argued before the Superior Court. While the PCRA court was well acquainted with the claims raised in the amended PCRA petition, Appellant’s failure to comply with the court’s order to file a Rule 1925(b) statement compelled the court to speculate which of those claims Appellant would maintain on appeal. Bearing in mind the purpose of Rule 1925, this result is unsupportable. Therefore, as PCRA petitions do not fully inform PCRA courts of what issues an appellant will raise on appeal, a PCRA petition cannot serve as a substitute for a Rule 1925(b) statement. We reiterate our holding in Lord, and now expressly apply it to PCRA appeals. PCRA appellants, in order to preserve their claims for appellate review, must comply whenever the PCRA court orders them to file a Statement of Matters Complained of on Appeal under Rule 1925. Accordingly, any issues not raised in a Rule 1925(b) statement are waived. See Lord, 719 A.2d at 309. Applying the preceding to the case sub judice, Appellant’s failure to comply with the PCRA court’s order to file a Rule 1925(b) statement resulted in the automatic waiver of any issues he may have raised on appeal. As issues not preserved for appellate review generally may not be considered by an appellate court, the Superior Court properly refused to address the merits of Appellant’s waived claims. Even so, Appellant argues that the Superior Court erred in deeming his issues waived sua sponte. As explained supra, however, Rule 1925 waiver is automatic. Accordingly, the Superior Court properly deemed Appellant’s issues waived under Rule 1925, notwithstanding that the Commonwealth never briefed or argued Rule 1925 waiver. Moreover, if we were to accept Appellant’s position, courts would be constrained to selectively enforce the Rule based upon the arguments of parties, which would subvert the purpose and effectiveness of Rule 1925. Lastly, Appellant has attached an unverified Rule 1925(b) statement to his brief and avers that he “provided” it to the PCRA court. Appellant’s Brief at 5, Appendix “C.” Appellant does not allege that he properly filed this statement with the PCRA court. Rather, the unverified Rule 1925(b) statement is addressed directly to the PCRA court judge. In addition, Appellant’s unverified Rule 1925(b) statement does not appear anywhere, in the original record, is not evinced by any docket entry, and does not bear the customary “time stamp” of the clerk of courts. Rule 1925 is not satisfied when an appellant merely mails his Rule 1925(b) statement to the presiding judge. Rather, Rule 1925(b) requires appellants to “file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal.... ” Pa.R.A.P.1925(b). Even if we were to accept Appellant’s unproven assertions that he mailed his statement to the PCRA court judge, Appellant nonetheless failed to properly file the statement with the clerk of courts. Thus, as “[a]ny issues not raised in a 1925(b) statement will be deemed waived!,]” Appellant’s failure to properly file a Rule 1925(b) statement waives any issues he may have raised. See Lord, 719 A.2d at 309. The order of the Superior Court is affirmed. Justice EAKIN did not participate in the consideration or decision of this case. Justice CASTILLE and Justice SAYLOR file concurring opinions. Justice NIGRO files a dissenting opinion. . 18 Pa.C.S. §§ 2502(a), 3701, 903, respectively. . Appellant’s court-appointed attorney has represented Appellant throughout the PCRA proceedings and this appeal. . See Commonwealth v. Ervin, 456 Pa.Super. 782, 691 A.2d 966 (1997) (holding that mere omission of issue from statement does not automatically result in waiver; rather, Superior Court will address merits of any issue in criminal case whenever certified record is sufficient to conduct meaningful appellate review); Commonwealth v. Stilley, 455 Pa.Super. 543, 689 A.2d 242 (1997) (holding that appellate court may exercise discretion to invoke waiver provision of Rule 1925 only where failure to file statement or omission from statement defeats effective appellate review); Reynolds v. Commonwealth, Dept. of Transp., Bureau of Driver Licensing, 694 A.2d 361 (Pa.Cmwlth.1997) (explaining that Commonwealth Court would review merits of appeal despite agency’s failure to file statement if trial court filed an opinion allowing meaningful appellate review); Commonwealth v. Nelson, 453 Pa.Super. 637, 684 A.2d 579 (1996) (holding that waiver of claims on appeal for failure to file statement is not automatic; Superior Court will discharge its appellate function unless failure to file statement prevenís meaningful appellate review). Indeed, this analysis has survived despite our decision in Lord. See, e.g., Commonwealth v. Ortiz, 745 A.2d 662 (Pa.Super.2000) (finding no impediment to meaningful review where trial court’s opinion discussed sole issue raised on appeal, despite untimely filing of statement).

Opinion by Mr. Justice Kephart, The parties to this litigation own adjoining tracts of land in Delaware County; that of appellant, an 83 acre tract, is used as a farm and residence, while that of appellee, engaged in the business of refining petroleum oil, is a 23.67 acre tract on which large tanks for storage of oil have been erected. The nearest tank is at present 900 feet from plaintiff’s land, but it is proposed by appellee to construct two tanks, one 83% feet, the other 417 feet, from the boundary line. Each tank will store 75,000 gallons of oil or its byproducts. A bill for an injunction was filed, averring that the construction and use of these tanks would constitute a menace to the safety and quiet enjoyment of the lands and home of appellant; and that the effect of a fire that might easily ignite the liquid or cause an explosion would bring disaster to appellants for which there could be no adequate remedy at law. A demurrer was filed, which the court below sustained on the ground that appellant’s complaint was based on a mere apprehension of danger without adequate foundation. This appeal follows. The effect of the demurrer was to admit all the allegations of fact contained in the bill, and the inferences reasonably deducible therefrom: Kurtz v. R. R. Co., 187 Pa. 59; Pew v. Minor, 216 Pa. 343. The gravamen of appellant’s bill lies in the charge that petroleum, or any of its by-products, is readily ignited from “a stroke of lightning, spark, flame, or the heat rays of the summer sún,” and it is “susceptible” to such ignition; and that because of this, the tank containing petroleum would be “an ever present, threatening, dangerous menace to the land, property and estate of the plaintiff.” Appellant does not aver that appellee’s business is a nuisance, her prayer for an injunction proceeds on the theory that the proposed use of appellee’s plant and equipment at this location becomes a nuisance to her as an adjoining landowner. It was, of course, necessary for her cause to show that the use is inherently dangerous to life and property at the particular place. The subject-matter of the claim is the power of the business to do harm. The subject-matter should speak dangei’, of itself, without intervening agency, unless the latter is reasonably certain, ox*, if it is not known as such dangerous agency and does not actually exist in fact, it should be so described that the result reasonably to be expected shows that danger; if this is done, the court may then open the door for hearing and proof. An owner has a right, barring malice and negligence, to any use of his property, unless by. its continuous use he prevents his neighbors from enjoying the use of their property to their damage. Such use may, under given conditions, be enjoined. Equitable relief must be predicated on an injurious invasion of a fixed and determined property right. By injury is meant something affecting the capacity of the property for ordinary use or causing a discomfort in the enjoyment of it that threatens the health or welfare of the occupant, with resultant injury to the property. The damages must be of a substantial character: Price v. Grantz, 118 Pa. 402, 413. A mere diminution in value is not sufficient to justify a grant of equitable relief: Rhodes v. Dunbar, 57 Pa. 274. Where, however, a party is entitled to compensation at law, if the injury, actual or threatened, be of a continuous nature and remediable only by multiplicity of suits, or where the injury is irreparable by damages at law, equity will exercise its restraining power. This is the test of equity jurisdiction: Evans v. Fertilizing Co., 160 Pa. 209, 220. As affecting personal discomfort solely, the relief must depend largely on the circumstances of the nuisance and the place where the things complained of occur. In this age, persons living in a community or neighborhood must subject their personal comfort to the commercial necessities of carrying on trade and business. Where the individual “is affected only in his tastes, his personal comfort, or pleasure, or preferences, these he must surrender for the comfort and preferences of the many” (Robb v. Carnegie, 145 Pa. 324, 340) ; but when the consequences of that trade or business not only effect discomfort to the body, but become a resultant injury to property, or vice versa, there is ground for equity interference: Evans v. Fertilizing Co., supra, p. 219. One thing is quite certain, equity will not interfere unless its right to do so is free from doubt: Sparhawk v. The Union Passenger Ry. Co., 54 Pa. 401, 426. The wrong or injury resulting from the pursuit of a trade or business must be plainly manifest or certain to follow: Rhodes v. Dunbar, supra, p. 290; Wier’s App., 74 Pa. 230. If the injury be doubtful, eventual, or contingent, equity will not grant relief: Rhodes v. Dunbar, supra. The fact that it might possibly work injury is not sufficient. The law has determined that some businesses are, under certain conditions, nuisances per se. A nuisance per se, as relating to private persons, is an act or use of property of a continuing nature offensive to and legally injurious to health and property, or both. A given condition may be, at all times and places, a nuisance per se. As related to business, its inherent qualities or elements must be such that it must reasonably follow, in a particular locality or surrounding, that there will be an injury to property or a discomfort to the individual, with a resulting injury to property. The difference between a business, which, no matter how it is conducted, is a nuisance per se as to certain location and surrounding, and a business which is being so conducted as to become a nuisance, lies in the proof, not in the remedy. In the former, the right to relief is established by averment and proof of the mere act; in the other, proof of the act and its consequences is necessary: Dennis v. Eckhardt, 2 Grant 390. A given business is in itself a nuisance per se when it is generally known to be injurious to health and to cause legal damage to property in certain localities and surroundings, regardless of how it may be carried on. “The common experience of mankind, of which the courts take judicial notice, has found, in certain localities and surroundings, certain pursuits to be universally injurious to health and damage to property, no matter how carefully conducted.” Such pursuits are, in given places, nuisances per se. The following circumstances attending a business or property that give rise to a nuisance per se are, offensive or noxious odors or smells, undue noise of crowds, music, motors, gambling, improper construction of buildings, and the like, that are injurious to morals, life, health and property. As illustrating a business that is perfectly lawful, becoming unlawful and a nuisance per se as in a certain locality, reference is made to those cases where it has been judicially determined that the business was unlawful near dwellings or in built up sections. In Evans v. Fertilizing Co., supra, the manufacture of bone fertilizer near the home of a farmer was held to be a nuisance per se because noxious odors and offensive smells were inseparable from the manufacture. This circumstance was a fixed fact, the knowledge of it was common to everybody, the court could take judicial notice of it. The same was true of the use of property in a city as a livery stable (Houghton v. Kendrick, 285 Pa. 223) and a stockyard (Eckels v. Weibley, 232 Pa. 547) in a residential section; a public garage which is inseparable from the noise of pounding metals, noxious odors, racing motors, and other affecting causes (Phillips v. Donaldson, 269 Pa. 244; Hibberd v. Edwards, 235 Pa. 454; Prendergast v. Walls, 257 Pa. 547), a saw mill in the same character of district (Krocker v. Westmoreland Planing Mill Co., 274 Pa. 143), an amusement park near dwellings, with its unfailing accompaniment of crowds, music and noise until late at night, and other detractions (Edmunds v. Duff, 280 Pa. 355), as a powder mill (Wier’s App., supra). All of these uses were held to possess inherent qualities which, as to a given locality, have been condemned by the courts as nuisances per se. In other words, though the business be lawful, as, for instance, a powder mill in an outlying district (Dilworth’s App., 91 Pa. 247), it becomes unlawful because of location and surroundings. In all these cases, it must be apparent that an injunction was not granted on the ground of anticipated danger or an apprehension of it, but, when the place and the act are admitted, it has been determined by the courts that certain unavoidable, inherent characteristics of the business injuriously affect health and property. In these cases, the averment of the act, or an attempt to perform it in a place forbidden, is all that is necessary. Where the business is conducted so as to become a nuisance, a different rule prevails. The proof must show that it is conducted in such way as to become injurious. The injury arises from either an improper conduct of business or one that could be remedied. See, for illustration, Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540, where smoke, dust, and refuse from a steel plant, destroyed property and became injurious to health. The two tanks here were not built when this bill was presented; therefore, of course, they were not in operation. In considering the question in this case, we must determine from the disclosed uses to which the property is to be put in the place described, not only whether it possesses the power to do harm, but whether injury will necessarily result from the proposed use, or whether the use subjects the property to such contact with outside agencies that its probable result will be dangerous. Was the contact manifest or certain to follow? The bill does not charge any such inherent characteristic or any such likelihood of danger. True, it does say that petroleum and its by-products are highly explosive, readily ignited, and susceptible to ignition from lightning, spark, flame, intense heat of the sun, or internal combustion. It does not charge that the natural, the probable result of the building with its contents will be an explosion or a fire. It does not charge that this would be a “plainly manifest” result from placing oil or its by-product in the tank. It does charge that, because it is readily ignited and because it is susceptible to ignition, the result of the use of the building under the circumstances would be a constant menace and danger. All of this is purely problematic or conjectural. Of course, petroleum and its by-products, under the circumstances here existing, are readily ignited, but will they be ignited? Is that likely? Does common experience show it? Is the manner of use as described such that the probabilities are that they will be? The words “readily” and “susceptible” are words of anticipation, apprehen sion or mere fear, or, as the authorities say, doubtful, eventual, or contingent. The statement that the use becomes a menace is but a conclusion based on these antecedent conjectures. There is no allegation in the bill that the construction is improper, that the equipment is not of the ordinary and usual kind, or that the regulation of the plant and its supervision is not of the best; nor does the bill aver that there will be a failure to afford proper appliances in its conduct. The business is very generally carried on, and the same complaints as contained in this bill could be made against almost any business. Take, for illustration, gas containers or tanks, storage tanks for automobile use, automobiles, dynamite used in the conduct of business, paper companies using large quantities of paper, or hay in a field or a barn, all are readily ignited and susceptible to flame, sparks, lightning and combustion. To stamp them as nuisances per se without showing, not merely apprehension or anticipation, but that the reasonable and normal result of the use will be a fire and consequent destruction, would greatly widen the heretofore existing scope of equity jurisdiction and greatly hamper necessary business through groundless fears. What we have said may be summarized briefly in this way: Where it is sought to enjoin an. anticipated nuisance, it must be shown (a) that the proposed construction or the use to be made of property will be a nuisance per se, (b) or that, while it may not amount to a nuisance per se, under the circumstances of the case a nuisance must necessarily result from the contemplated act or thing. See 7 A. L. R. 749; 26 A. L. R. 987. The injury must be actually threatened, not merely anticipated; it must- be practically certain, not merely probable. It must further be shown that the threatened injury will be an irreparable one which cannot be compensated by damages in an action at law. A mere de crease in the value of complainant’s property is not alone sufficient: Rhodes v. Dunbar, 57 Pa. 274. Thus far, we have discussed the question solely from the standpoint of plaintiff’s bill and its averments. But there is another question related thereto. We have decided that gasoline in storage in built up sections is not only not a nuisance per se, but it is not dangerous as a fire hazard: Manorville Boro. v. Flenner, 286 Pa. 103. We said in Rhodes v. Dunbar, supra, that the apprehension of danger from fire was speculative and could not become the basis of equitable interference. In the case of Manorville Boro. v. Flenner, supra, p. 107, speaking through Mr. Justice Schaffer, we said, “The storage of gasoline in unlimited quantities in properly constructed and equipped tanks such as those erected in plaintiff borough is not dangerous to life or property, and it can be and is stored in large quantities in thickly populated districts without danger, that the storage of the amount of gasoline provided for in the tanks in question, 36,000 gallons, is not dangerous within itself, if properly regulated, and, when properly supervised, the use of such appliances for the storage of gasoline as have here been provided does not create a fire hazard to the traveling public or the inhabitants of plaintiff borough. Under these findings, it could not be determined otherwise than that the ordinance in question is unreasonable. It was conclusively shown that not the amount of gasoline stored, but the manner of its storage, determines the question of danger therefrom and that as here stored in modern scientifically constructed tanks it is not dangerous. That ‘which is not an infringement upon the public safety and is not a nuisance, cannot be made one by legislative fiat and then prohibited’: Bryan v. City of Chester, 212 Pa. 259, 262.” In the case before us, appellee has undertaken to safeguard the plant with all modern appliances, with fire ditches around it, to protect adjoining property, and, with the Manorville Case, appellant’s problem becomes more difficult. Plaintiff urgently insists-that she should be permitted a hearing and the court below should find the facts. We do not agree with this conclusion. If appellant should prove all the averments that are provable as set out in her bill, with the inferences, deductions and conclusions therefrom, she would still not be entitled to relief. The decree of the court below is affirmed at the cost of appellants.