The petition filed was signed by seven freeholders and set forth: "That the petitioners are freeholders in the Fifteenth Ward, whose lands lie on or near to Parrish Street in said ward; that said Parrish Street is a fifty feet wide street, laid down upon the public plan, and is opened, curbed, and paved, and otherwise improved westward as far as Twenty-eighth Street;

provements in the immediate neighborhood require that said Parrish Street shall now be opened from Twenty-eighth Street to Twenty-ninth Street as a public highway.'

shows that the father has deserted his child, and | from Twenty-eighth Street to Twenty-ninth Street, in that event the mother under the Act of As- in the Fifteenth Ward, formerly a part of the sembly of May 4, 1855 (Purd. Dig. 1008, pl. 25) District of Spring Garden. is substituted for the father. But the child has been apprenticed to Dodge, and the question is, shall these indentures be cancelled for any reason? The Apprentices' Act declares "if any master or mistress shall misuse, abuse, evilly treat or shall not discharge his or her duty towards his or her apprentice according to the covenants in the indentures," the Court shall act. Without expressing an opinion upon the char-that the public necessities and the state of imacter of the business specified in the indenture, it is clear to my mind that a master who introduces his apprentice upon the stage at Fox's, or any other theatre, at the tender age of six years, for ten dollars per week, does an act which is in direct conflict with his duty, although I observe in the indenture the covenant declaring that he shall not visit "play houses" has been stricken out. For this reason, and because the indenture was executed by the father who had abandoned his child, I shall cancel the indenture, but as under the evidence I do not think the mother is a proper person to take charge of this child, I shall make a temporary order sending the boy to the Northern Home for Friendless Children; and as I think it would be best for the child to have a permanent guardian I shall delay further action until the Orphans' Court has had an opportunity to act under the legislation above referred to, to wit: the Act of May 4, 1855. Opinion by LUDLOW, J.

In re Parrish Street.

The petition prayed the Court, upon proper notice to the owners through whose lands said street passes, as provided by the Act of March 22, 1813 (P. L. 143), relating to the District of Spring Garden, to order said Parrish Street to be now opened from Twenty-eighth Street to Twenty-ninth Street, or, if the Court should see fit, to appoint viewers to view and report to the Court as to the expediency and necessity of opening said street at this time, before whom the owners, through whose lands said street passes, shall be notified to appear.

The said Act of March 22, 1813 (P. L. 143), to incorporate the District of Spring Garden, provided for a survey and confirmed plan of streets, and provided, after confirmation, for the opening of such streets, as follows::

"And thenceforth all the streets, roads, lanes, courts, and alleys shall be forever deemed, adjudged, and taken to be public highways; and the survey and regulations so returned and recorded shall be and remain unalterable; and Oct. 1878. inasmuch as the public convenience will be for the present answered by the certain knowledge when and in what manner such streets, roads, lanes, courts, and alleys will

Opening of streets on public plans-Jurisdiction of courts and councils.

in future run, but as it may not be necessary immediately to lay all of them open, and in order to provide for the opening of the same from time to time, as the increasing improvement of the district may require, it shall and may The Act of March 22, 1813 (P. L. 143), relating to be lawful for any number of freeholders of the said disthe opening of streets upon the public plan of the District trict, not less than seven, whose lands lie near or adjoinof Spring Garden has not been expressly or impliedly re-ing to such street, road, lane, court, or alley, to apply by pealed, and is still in force.

The local laws in relation to the opening of streets in Philadelphia are expressly continued in force by the 44th

section of the Consolidation Act.

The jurisdiction of the Quarter Sessions over the opening of public streets, whether upon the plan of the city or district or not, has been uniformly exercised since 1790, and has never been successfully questioned.

petition to the Court of Quarter Sessions of the County of Philadelphia, who, after hearing the petitioners, and such other freeholders through whose lands such street, road, lane, court or alley may pass, as shall offer objections hereto, to determine whether it be proper at the time to direct the opening of the same, and if the Court shall be of opinion that the state of improvement in the neighborhood is such as to require the opening thereof, they shall issue their warrant, directed to the superintendent of the streets, roads, lanes, &c., in the said district, enjoining and requiring him to open such street, road, lane, court, or alley, accord

The jurisdiction of Councils to open streets in cases of emergency, under the Act of April 21, 1855, is concurrenting to the plan or draught of the same."

and not exclusive.

In re Jackson Street (2 Norris, 328) commented on. Rule to show cause why petition should not be quashed, and appointment of viewers set aside.

This was a proceeding to open Parrish Street

The Spring Garden system was made the law of Kensington, by Act of March 6, 1820 (P. L. 62); of the District of Penn, by Act of April 19, 1843 (P. L. 344); of the District of Richmond, by Act of February 27, 1847 (P. L. 186);

and of West Philadelphia, by Act of May 1, 1852 (P. L. 508).

In accordance with the second prayer of the petition viewers were appointed by the Court, and an affidavit of notice to property-holders was duly filed. After the organization of the jury, on the application of one of the freeholders, through whose lands the street passed, this rule was granted to show cause why the petition and the appointment of viewers should not be quashed.

Joseph L. Caven, for the rule.

The Court of Quarter Sessions has no jurisdiction over the question of opening streets laid down on the public plans of the city of Philadelphia.

In re Fifty-second Street, 33 Leg. Int. 72.
In re Jackson Street, 2 Norris, 328.

appointed as an examiner.

The appointment is merely ancillary, and is under "the general powers of the Court."

Forbes Street, 20 Sm. 136-37.

Any possible doubt which could have existed on the subject was taken away by the Act of March 16, 1866 (P. L. 224).

In re Paschall Street, 33 Leg. Int. 257.

Under no circumstances should the petition be quashed. If the appointment of viewers is vacated, in conformity with the view of the Court In Re Hare Street, the Court should fix a time for hearing the petitioners in open Court. William Grew, Assistant City Solicitor, relied

Nov. 11, 1878. THE COURT. The petition The Act of March 22, 1813 (Spring Garden for the opening of Parrish Street, as laid down Act) does not provide for a jury of view, which on the confirmed plan, between Twenty-eighth can only be appointed under the Acts of March and Twenty-ninth Streets, is signed by persons 26, 1808 (P. L. 119) and May 3, 1832 (P. L. who represent themselves to be freeholders, 428), the former of which relates to the District owners of lands which lie on or near to said Parof Moyamensing, and the latter to the townships rish Street. They represent that the public conof unincorporated Northern Liberties and Penn. venience and the state of improvement, in the In re Hare Street, 34 Leg. Int. 408. neighborhood require that said street shall be In re Sixth Street, 1 Phila. Rep. 277. opened as a public highway.

George M. Conarroe, for petitioners, contra. The petition was prepared in the alternative form, so as to come within the Acts of March 22, 1813 (supra), June 13, 1836 (General Road Law, P. L. 537), or March 16, 1866 (P. L. 224). The local Acts for opening streets on confirmed plans were expressly preserved by Section 44 of the Consolidation Act (P. L. 1854, 44), and were practised under both before and after the Act of April 21, 1855. In Re Jackson Street is attempted to be strained so as to oust the jurisdiction of the Quarter Sessions, when the question of such jurisdiction did not arise in the case, and was never passed upon by the Supreme Court.

Juries of view have been of unquestioned lawfulness for at least seventy-five years. Their reports are merely advisory to the Court. That the judges should have appointed them, from 1800 to 1877, "without authority of law," and that such illegal practice should have been acquiesced in by the entire bar is inconceivable. The jurisdiction of Councils in cases of emergency does not impair that of the Courts. The latter is the "ordinary procedure."

that

The petition is in the alternative form, asking upon proper notice to the owners through whose lands said street passes, the Court will order it to be now opened, or appoint viewers, to view and report to the Court as to the expediency and necessity of opening at this time.

In accordance with the latter prayer, a jury was appointed. The jury organized and their organization was followed by a rule to show cause why the petition and the appointment of viewers should not be quashed.

denies to the Court of Quarter Sessions jurisdicThe first reason assigned in support of this rule tion over the question of opening streets laid down on the public plan of the city. This reaJackson Street (2 Norris, 328), that proceedings son is probably founded on the syllabus of In re for the opening of a street laid down on the plan of the city must be in pursuance of the Act of April 21, 1855, which gave to Councils power to open, whenever, in their judgment, it was demanded by the public exigency. This portion of the syllabus will, however, be found to be wholly unwarranted by anything which is contained in the opinion of the Court. Jackson Street decides no other point than that which had been held In re 52d Street (Legal Intelligencer, 1876, page 72), that a street on a confirmed plan, was a located or established street, and that the Act of May 14, 1874, was therefore inapplicable; the primary duty of the viewers under that Act Juries of view are simply convenient machinery was to locate, and if that had already been done, to assist the Court. They may be as properly the first step contemplated could not be taken

Large v. City, 16 Legal Int. 148.
Id. 11 Casey, 231, note.

The decision of Judge OSWALD THOMPSON In re Sixth Street (1 Phila. Rep. 277), was simply that the local Act prescribed the mode of procedure in the unincorporated Northern Liber

ties.

by the jury. Nothing which is contained in the | view were appointed, and their reports were acopinion of Mr. Justice WOODWARD warrants the cepted or rejected, as they were, in the judgment conclusion that to Councils belongs exclusive of the Court, well or ill founded. They were jurisdiction over the question. The Act of April never regarded as conclusive, and after the report 21, 1855, is cited by him as giving ample author- had been considered, the practice was a frequent ity to Councils to open streets, whenever, in the one for the judges to go upon the ground and language of the Act, they should deem the pub-examine for themselves whether the improvelic exigency to demand it. But nowhere in the opinion is it even suggested that the Court of Quarter Sessions has not concurrent power with Councils whenever, by local legislation, such authority has been conferred upon the Court.

ments of the neighborhood and the necessities of the public required the opening of the street.

ground for opening.

Another mode of obtaining an order to open was by petition of property holders, owning land on or near the line of the street, asking the Court This question was decided in favor of the ex- to issue their warrant or order, commanding the ercise of a concurrent power by the Court of proper officer to lay the street open to public Quarter Sessions of Philadelphia and Councils, use. This mode was first prescribed in the Act about twenty years ago, and from that time until incorporating the District of Spring Garden, the present it has been uniformly accepted as the passed the 22d of March, 1813, which mode controlling interpretation of the law on this sub- of proceeding was by subsequent legislation ject. The point was decided in the case of Large extended to the Districts of Penn, Kensington, v. The City (16 Legal Intelligencer, 148; 3 Richmond, and West Philadelphia. For the Phila. Rep. 382), and reported in a note to Sower District of Moyamensing and the unincorporated v. The City (11 Casey, 231). The latter case township of the Northern Liberties, special prowas decided upon the authority of Large v. The vision was made for the appointment of viewers, City, and upon appeal to the Supreme Court, it to report to the Court whether the time had come was affirmed. In Large v. The City, it is said, for the opening of a street on the plan. But that by the Act of 1855 no interference with the under each of these local laws the state of imordinary proceeding by petition to Court, of per-provements and public need constituted the sons owning property on or near the line of the street proposed to be opened, was intended. Such an application can only be successful when the Court becomes satisfied that the improvements of the neighborhood require the street to be opened for public use; but the Act of 1855, on the contrary, is intended for special cases, requiring immediate action: Councils are only authorized to order a street to be opened when, in their judgment, the public exigency demands it. Such a necessity not unfrequently arises; the construction of a public culvert or laying of a water main, are instances in point when the need is an urgent one, and when prompt and speedy action is demanded by such public exigency. To confound the two systems is to overlook the distinction which exists between a condition of affairs in which there is urgent need or want; a pressing necessity or distress; a case which demands immediate action, supply or remedy (Webster), with a state of facts in which such elements are wholly wanting, when mere convenience and the advancement of improvements constitute the case on which the Court may direct a street to be opened. This was done under a practice which can be traced back for at least half a century, by a petition asking the Court to appoint viewers to lay out, as it was generally termed, a street upon the plan. The petitioners in such cases contemplated the laying open to public use, rather than the laying out or locating of a street. Treating the proceeding as advisory to the Court on the question of the expediency of opening, juries of

It was decided, by Judge OSWALD THOMPSON, in the matter of the opening of Sixth Street, under the Act of May 13, 1832 (P. L. 428, 1 Phila. R., p. 277), which related to the unincorporated Northern Liberties, that because that Act provided for the appointment of viewers to report upon the expediency of opening, the general road law of June 13th, 1836, did not apply; holding that it had no reference to streets already laid out, as to the opening of which special provision by law had been made. The duty of viewers under the general road law is to view the ground for a proposed road, and proceed to lay out the same. In re Hare Street (Legal Intel., Nov. 23d, 1877), Judge YERKES accepts the views entertained by Judge THOMPSON of the powers and duties of viewers under the Act of 1836, and as the local act applicable to the former District of Spring Garden, makes no express provision for the appointment of viewers, to report on the question of opening a plotted street, he holds that the Court have no power of appointment in such a case. If this question rests alone on the Act of 1836, this decision is doubtless well founded. It, however, gives no effect to the practical interpretation placed on the general road laws in force in Philadelphia from the first confirmation of a plan, that of the District of Southwark in 1790; nor does the Act of March 16th, 1866 (P. L. 224), seem to have been considered in this connection, which provides that in all cases relating to the opening of streets upon

lating to the widening of streets in Philadelphia.

Regarding these local acts as still in force, the petitioners are entitled to have conceded to them a standing in Court under the Act of March 22, 1813, Parrish Street being a street of and laid down on the plan of the former district of Spring Garden. The essential requisites of that Act are fulfilled by the petition, which is signed by the requisite number of freeholders, whose lands lie near or adjoining to Parrish Street, which entitles them, and such other freeholders through whose lands the portion of Parrish Street proposed to be opened is laid out, to an order fixing a time when they may be heard upon the question whether it is proper at this time to direct said street to be opened. And such order is accordingly made in the form submitted by counsel representing the petitioners.

the plans of the city of Philadelphia, and of view, | of that system, where they do not conflict with, review, and assessment of damages, the persons or where they apply to a state of facts not covappointed to view, review, and assess damages, ered by the special or local acts. The recent deshall be appointed by the Court, etc. If this Act cision of the Supreme Court in the matter of is to be construed as recognizing the appointment widening Chestnut Street, west of Broad Street, of viewers in all cases of opening of streets on In re Chestnut Street (35 Legal Intell. 134), the plan, there is an end of controversy on this ought to be regarded as an end to all controversy subject, and it must be confessed that it looks upon this subject. The attempt on the part of strongly in that direction, yet it might be inter- the city was to widen the street under the genepreted so as to restrict its operation to the ap- ral road law. The proceedings were set aside, pointment of viewers to cases where it is specially because of the existence of the special act, which authorized, as under the Act of March 26th, 1808 marked out a course of proceeding, and was (P. L. 119), relating to Moyamensing, and the made applicable to a state of facts wholly differAct of May 23d, 1832 (P. L. 428), which is ap-ent from those covered by the general laws replicable to the unincorporated townships of the Northern Liberties and Penn. However this may be found to be, when the necessity shall arise for determining the question, we think it is better to accept the decision In re Hare Street for the present, at least for the sake of uniformity of practice, inasmuch as relief in this case may be had in the mode prescribed under the local acts, which were in force before consolidation, none of which were epealed by that act or its supplements It was expressly declared in the 44th section of the Act of Consolidation, that these acts should continue to be operative until they should be altered or repealed by the Legislature. A direct repeal, as to either of them, is not asserted; nor can it be successfully maintained that they are repealed by implication, a mode of repeal of a statute which is never favored, and which is adopted only when necessity requires it to be adopted, and such is not the case as to the local acts in question, inasmuch as the Act of 1855 was intended to meet the requirements of a public exigency only. It is possible that a necessity may require the aid of that act when the local acts are found not to apply, provided relief cannot be given under the Act of March 16th, 1866, for then the public exigency contemplated might be said to exist. But even then there would be no repugnancy between a general law and the local statutes; a choice of remedies or mode of procedure would be afforded to property holders who desired to have a street opened for public use.

Notwithstanding the express declaration contained in the 44th section of the Act of Consolidation, as to the continuing validity of pre-existing local acts, in relation to laying out, opening. of streets, the assessment and payment of road damages in the city of Philadelphia, the contention seems never to cease upon this point. It has long been settled by the decision of the Supreme Court that these local laws constitute a part of the system of road laws, operative and paramount where they are in their provisions different from those of the general road laws of the State, and that the general laws constitute a part

The appointment of viewers is vacated, and the motion to quash the petition is refused.

The following order was made by the Court: And now, Nov. 16, 1878, the petition of seven freeholders, praying the Court to open the above street, having been heretofore filed, on motion of George M. Conarroe, Esq., for petitioners, it is ordered by the Court that notice be given to the owners through whose lands said street will pass, and to the City Solicitor, that the petitioners will be heard on Saturday, December 7, 1878, at 10 A. M., at which time any objections to opening said street may be made. Opinion by ALLISON, P. J.

of the wife to contract is no exoneration of the husband's liability where he has become a surety for performance of a contract made by herWhere a husband gives his own bond for his wife's debt to a building association, he stands in the nature of a surety for her, and is bound for the full amount of the bond. Rule to open judgment, and set aside fi. fa. The facts of the case were as follows:Judgment was entered on a bond with a warrant of attorney to confess judgment given by the defendant for $3000, for failure to pay the interest and monthly dues to the association plaintiff.

Nabb v. Koontz, 17 Md. 283.
Bank v. Dillon et al., 20 Vt. 123.

C. A. V.

Oct. 26, 1878. THE COURT. Under our law, a married woman can generally defraud one who may chance to trust her, but this is a personal privilege, not to be extended to her husband or a stranger, who unites with her in the attempt. While she is not liable upon her contracts, one who joins with her in signing a bond or note, whether as principal or surety, is bound; and the fact that her name appears upon such instrument will not affect the liability of the other party. Rule discharged.

Oral opinion by BIDDLE, J.

The wife of the defendant was the owner of fifteen shares of stock in the Hope Building Association, and obtained a loan from it, giving as security therefor a mortgage upon her property, C. P. No. 2. and assigning the said fifteen shares of stock as collateral; her husband, the present defendant, further giving the association his bond for $3000. Judgment having been entered on this bond, a fi. fa. issued, and defendant's property was levied on for the full amount.

The sum actually received by the wife from the association, together with interest on the same to date of suit, amounted to $2395.05, on which she had paid by dues $408, leaving a balance due of $1987.05. The defendant obtained the present rule on the ground that the judgment, and the levy under the fi. fa. issued thereon, should be reduced to the sum of $1987.05.

J. A. Burton, for the rule.

As against the wife, plaintiffs are not entitled to recover a larger sum than the amount actually received by her, with interest thereon, less all payments made by her.

Wolbach et ux. v. The Association, 4 Weekly
NOTES, 157.

The confession of judgment given by the husband was only as collateral security for the amount for which the wife could be held liable, viz., $1987.05; hence, no greater sum can be collected upon this judgment against him.

E. C. Quin, contra.

The present proceeding being upon the bond and warrant of the husband, he cannot plead his wife's disability in exoneration of his liability. His relation to the bond is not that of a principal, but rather in the nature of a surety for her.

Wolbach et ux. v. The Association, supra.

A party who becomes surety for, or executes a contract jointly with one who is under legal disability, is bound thereby, although his principal or joint contractor may not be.

Shallcross v. Smith, 31 Sm. 132.

Unangst v. Fitler, 4 WEEKLY NOTES, 31.
Warner v. Smith, 2 Id. 107.

Sept. 28, 1878. Bowman v. Tagg [No. 1]. Practice-Execution Testatum fi.fa.—The Act of June 16, 1836, § 76, does not take away the right to issue a testatum fi. fa., on a return of "nulla bona."

Rule to set aside a testatum fi. fa.

Judgment had been entered on a bond and warrant of attorney accompanying a mortgage of real estate situate in this county; a fi. fa. was issued and returned "nulla bona," whereupon this test. fi. fa. was issued.

E. C. Mitchell, for the rule.

At common law a test. fi. fa. could issue upon a return of "nulla bona" to a previous fi. fa., sufficient. This was changed by the Act of June and the mere docketing the preliminary writ was 16, 1836, § 76 (Purd. Dig. 654, pl. 95), requiring the plaintiff to file a suggestion that the defendant has no real or personal estate in the county. Moreover, the bond and warrant of attorney on which judgment was entered in this case recite the mortgage, and show that the defendant has real estate in the county. The return of "nulla bona" is merely technical, and gives way to the record.

[HARE, P. J. I think that the Acts of Assembly prepared by the revisers have been construed by the Supreme Court not to change the law unless a clear intention to do so is apparent.]

J. Q. Hunsicker, contra.

Before the Act of 1836 a test. fi. fa. could issue when the original fi. fa. had only nominally issued. Meason (1 S. & R. 97), says the preliminary fi. TILGHMAN, C. J., in McCormick v. lay, but is only directory. fa. is only a fiction. The Act of 1836 saves de

Boyer v. Kimber, 2 Miles, 393.

The return of "nulla bona" is, in full, that the defendant hath no lands or tenements, goods, or

Sewing Machine Co. v. Maxwell et al., 63 Mo. 486. chattels in the county whereof the said debt can

Maggs v. Ames, 4 Bingh. 470.

be made. If the defendant has real estate which