the Act of Congress of June 13, 1898. In fact such provision would tend to a great extent to destroy its effectiveness as a revenue measure. The clear purpose of the Act of Congress is to take away from transfers and assignments any probative character and to render them of no legal validity until they are subsequently stamped in compliance with the provision of "Sections 14 and 15 of the war-revenue Act of the act. The subsequent stamping is to be Congress of June 13, 1898, are as follows: taken as imparting legal validity only from that point of time. To judicially legislate into this provision a retroactive effect would be to make the act of transfer effective from the be "Sec. 14. That hereafter no instrument, paper or document required by law to be stamped, which has been signed or issued without being duly stamped, or with deficient stamp, nor any copy thereof, shall beginning without regard to the restriction of the recorded or admitted, or used as evidence in any court until a legal stamp or stamps, denoting the amount of tax, shall have been affixed thereto, as prescribed by law. "Subsequently on the 12th day of January, 1900, the proper amount of United States internal-revenue stamps was affixed by the collector of internal revenue under the provisions of the above-cited section. (Section 13.) "The question presented is, what is the qualifying effect of the inadmissibility of the transfer of assignment in evidence upon the sale of December 12, 1899. The absence of any adjudications as to the effect of the war-revenue Act of June 13, 1898, makes this a new question for determination. The law does not necessarily consist of precedents or adjudged cases, but of the principles which run through the cases, which, when properly applied, produce a legal consequence to the facts of the controversy. (See Judge BUCHANAN in State v. Buchanan, 5 H. & J., 317, and Judge MAGRUDER in State v. Smith, 6 Gill, 428.) * * * * * | Act of Congress, and invite a disregard of the stamp duties by withholding the stamp tax until some future emergency should arise for exhibiting the transfer. "My attention has been directed to several decisions of courts of last resort, notably in New York, Massachusetts and Michigan, in construing the stamp Acts of Congress of 1863 and 1864in which the provisions of these acts disqualify, ing unstamped papers as evidence were ignored. An examination of the stamp Acts of 1863 and 1864 shows quite a difference in this respect from the Act of June 13, 1898. In the former acts the objection to unstamped paper as evidence was subject to the qualification "that the omission of the stamp was with the intention to defraud the revenue:" Carson v. Phelps, 40 Md. 96. It might also be added that at the time these decisions were made the paramount authority of the Constitution of the United States and the laws made in pursuance thereof was not clearly determined or admitted. Thirty years have passed since these decisions were made and with the present state of the law on this subject, as adjudged by both Federal and State courts, it is not likely that the power of Congress to legislate on this subject would now be questioned in any court. "No question was made at the hearing as to the right of the purchaser to intervene and seek a recission of the sale, nor do I understand that "The principle that I understand to be well her right to do so is denied. A court of equity established in this State is that every statute is will not compel a purchaser to take a title to be construed as prospective in its operation which is not free from reasonable doubt and unless the intention of the Legislature that it might in reasonable probability expose him to shall be retroactive is clearly expressed in it: the hazzard of litigation: Emmert v. Stouffer, Baugher v. Nelson, 9 Gill, 303; State v. Nor- 64 Md. 554; Lurman & Fowler v. Hubner, 75 wood, 12 Md. 206; Clark v. Mayor, etc., 29 Id. Id. 268; Huntner & Walter, 30 Id. 60; Con283; Davis v. Clabaugh, 30 Id. 508; Herbert | naughton v. Bernard, 84 Id. 577; Freeman on v. Gray, 38 Id. 529; Williar v. Baltimore Butchers' Loan and Annuity Association, 45 Id. 555. "No such retroactive intention is either expressed or can be implied from the language of Void Judicial Sales, section 48. "For the reasons above stated, the exceptions of the purchaser to the ratification of the sale will be sustained, and I will sign an order to this effect." his receivership ended on March 1, 1899, but that he has not yet been discharged, or his account closed. The affidavit of defense is, first, that the plaintiff, negligently and carelessly, permitted Merritt & O'Hern to default on their rent, and made no attempt to collect the rent, did not notify the defendant of the default, and did not exercise his right of terminating the contract provided for in the agreement. None of these things was the plaintiff bound to do by the terms of the contract. No authority is needed for the proposition that a mere neglect of the obligee to col MONSERRAT, Receiver, v. EQUITABLE TRUST lect, where no agreement for extension of time COMPANY. is made, is not a discharge of the surety. The affidavit further alleges that the defendant is not bound by contract or otherwise to the Hock Surety — Liability of-Change of parties to ing Valley Railway Company, nor can that contract. The receiver of a railroad company leased to a contracting firm locomotives, and the defendant, a trust company, went on the bond of the contractor for the return to the receiver of the locomotives and also for the payment to him of the contract price. The contractor failed without having paid the rental for the locomotives. Part of the rental due accrued after the railroad company had gone out of the hands of the receiver, but before he had been discharged. In an action of assumpsit by the receiver against the trust company maintain a suit against the defendant, and that when the company took posses. sion of the road it was such a change in the relation of principal, surety and pledgee, and such a change of the contract, as to relieve and discharge the surety therefrom. This contention rests, we think, upon a misapprehension of the plaintiff's claim. This is not a suit by the Hocking Valley Railway Com company on its bond it was held, upon rule for judg-pany. The suit is by Monserrat, the party to ment for want of a sufficient affidavit of defense, that the passing of the road out of the hands of the receiver was not such a change of parties to the contract as to relieve the surety from the payment of rental or any part thereof due by the contractor to the receiver under its contract. whom they gave the bond. The suggestion by the plaintiff as to whom a part of the money belonged to when recovered was unnecessary, and cannot affect the defendant's rights oue way or another. The fact is undisputed that Monserrat was in possession of the locomotives, No. 365 Oct. T., 1899. Rule for judgment for that be hired them to Merritt & O'Hern, that want of sufficient affidavit of defense. Opinion by SHAFER, J. Filed March 17, 1900. This is an action against the surety on a joint and several bond made by W. C. Merritt and J. E. O'Hern, partners as Merritt & O'Hern, as principals, and the Equitable Trust Company, Pittsburgh, as surety, to secure the payment of the rental of two locomotives, bailed by the plaintiff, as receiver of the Hocking Valley aud Toledo Railway Company, to Merritt & O'Hern, at the rate of five dollars a day each, Sundays excepted. The statement of claim avers that Merritt & O'Hern kept the locomotives from December, 1898, to June, 1899, for which time the total rental amounts to $1,335.09. This amount the plaintiff sets out in two parts, $531.94 being the amount of the rental accrued before his active duties as receiver ended and the railroad company resumed possession of the road, and $803.11, which he says he sues for, for the use of the railroad company. It also appears, by plaintiff's statement, that the active duties of they had the use and possession of them, uninterrupted by any claim of any one else. They had everything they bargained for. Under these circumstances, whether Monserrat was the owner of the locomotives or a trustee only, or whether he was a trustee part of the time only, or whether he had any title at all or not, was completely indifferent to Merritt & O'Hern, and, therefore, equally so to their surety. If any question should arise as to the proper person to pay the money to, that will be a proper subject of control by the court after judgment. After the rule for judgment herein was taken, upon some suggestion of the court on a partial argument, the plaintiff filed an amended or supplemental affidavit of claim, to which the defendant has filed an additional affidavit of defense. Upon a careful perusal of these we can. not see that they contain anything more than an explanation and specification of the matters first alleged, with some of the evidence by which the allegations might be supported. We are therefore of opinion that the affidavit of defense discloses no good defense to the plain- | them; and the question now to be determined tiff's action, and the rule for judgment must be made absolute. For plaintiff, Breck & Vaill. For defendant, Wm. M. Hall, Jr. is whether all of this money is payable to the plaintiffs, or, if not, how much of it each of the parties is entitled to take out of court. The parties do not disagree as to the payments made, or the times when they were made, but PARKER and WALLACE v. OIL WELL SUP. they differ widely as to the interest to be paid. Money paid into court on agreement that distribution should be made as the court directs. Opinion by SHAFER, J. Filed December 21, 1899. The parties hereto have agreed by writing filed that the sum of $3,014 64, paid into court by the defendant on May 27, 1899, less the prothonotary's commissions thereon, shall be distributed by the court to plaintiffs and defendant in such proportions as the court may determine, with like effect as if a rule had been taken to show cause why the money should not be paid out to the respective parties. In December, 1895, plaintiffs obtained a verdict against the defendant for $14,586.76, from the judgment whereon defendant appealed to the Supreme Court, and on May 26, 1896, the judgment was affirmed. Before the verdict certain execution attachments were issued upon judgments against the plaintiff, and served on the defendant, and these, amounting to about $5,700, were mentioned in the verdict. Other execution attachments, amounting to about $3,300, were issued and served upon the defendant after the verdict, and before the affirmance of the judgment. These attachments have been paid off, from time to time, the defendant furnishing the money, on account of the judgment, to pay one or all of them. A disagreement having arisen between the parties as to the liability of the defendant to the plaintiffs for interest on the amount of the judgment, the defendant, by a leave of court, paid into court the sum of $3,014.64, being the amount claimed by the plaintiffs to be due to The general rule is that the service of an attachment stops interest on a debt due: Jackson's Executors v. Lloyd, 44 Pa. 82. This rule, however, only applies where a garnishee is prevented from paying what he owes by the attachment, and by it alone. If he claims not to owe the money to the defendant in the attachment proceeding itself, or another suit between them, he is liable for interest as though there had been no attachment, for the attachment did not prevent the payment: Jones v. The Bank, 99 Pa. 320. Applying these principles to this case, pears that the defendant is liable for interest on the verdict from its rendition until the affirmance of the judgment, with credit, of course, for any payments made in the meantime, if any were made. it ap The interest being so calculated, and added to the verdict, will show the amount which the defendant should have paid to the plaintiffs at that time, if there had been no attachments, which now first begin to prevent payment. From this sum should be deducted a sum sufficient to cover the attachment, and interest should be calculated on the remainder until the time of paying the money into court, in such manner, however, that the interest shall not be compounded, of which there would be no danger in this case, as the attachments are larger than the interest. On the money set aside to pay attachments no interest should be charged, unless the defendant has delayed or refused to pay over the amount of any attachments, after they were duly removed, in which case he is liable for interest on the amounts during such delay. The amount to be set aside to pay attachments should be the whole aniount of the claims on the fund actually made by the several attaching creditors whose attachments were still pending at the time of the affirmance of the judgment; the costs, and a margin of 10 per cent. for interest which may accrue before settlement, and other contingencies. It was suggested by counsel, on the argument, that if the court would indicate the principles upon which interest should be counted, counsel might be able to agree upon a calculation to be made on that basis. If they are unable to do so, an application will be eu. tertained from either party for the ascertain. ment of the amount of interest, by the appoint- to make distribution of the fund in court in acment of an auditor, or otherwise. Rule to show cause why the fund in court should not be paid out in accordance with a certain schedule. Opinion by SHAFER, J. Filed March 17, 1900. By an opinion heretofore filed, the principles upon which the funds in court were distributable were indicated, and it was hoped that the parties would be able to agree upon their application, and upon a calculation, of the amount to be paid to each. The present rule is to show cause why a distribution should not be made upon a particular calculation to which the defendant shows cause: 1. That the sum of $2,249.17 of the debt finally reduced to judgment was never in dispute, and was withheld, not in consequence of any attachment, but, "because it was specifically pledged by the plaintiffs to the defendant to secure said defendant against any loss or damage that it might sustain on a certain bond given by said plaintiff to said defendant," and that, therefore, no interest should be calculated upon that amount; and 2. That the plaintiffs did not correctly state the amount of the attachments at the date of the affirmance of the judgment, in this, that they stated only the face of the original claims of the attaching creditors, without making any allowance for interest accrued thereon up to the time of the affirmance of the judgment; and that there was, in fact, a large amount of interest claimed and due upon the face of these claims, amounting, upon an average, to more than five years' interest; and 3. A mistake against the defendant of one year as to the date of payment. If the first contention of the defendant, as to the specific pledge of $2,249.17 is correct, it will follow that no interest should be chargeable upon that amount, unless it was detained after it should have been paid out upon attachments, and the method of distribution heretofore pointed out should be modified accordingly. The amount of the claims upon which 10 per cent. was to be added was intended to be the full amount of the claims of the attaching | creditors, including interest thereon at the time of the affirmance of the judgment. It appears, therefore, to be necessary to appoint an auditor to report a distribution of the fund in court. And now, March 17, 1900, the rule is discharged A. L. Over, Esq., is appointed auditor cordance with the principle suggested in the opinion this day filed. For plaintiff, James R. Sterrett, D. F. Patterson and C. L. Powers. For defendant, James C. Boyce. Court of Common Pleas No. 1, ALLEGHENY COUNTY. SPAITH v. GUFFEY. Judgment before justices of the peace-Setting aside of execution issued on judgment. Under the various Acts of Assembly regulating the filing of judgments of aldermen and justices of the peace in the Common Pleas, the transferring of such judgment to the other counties and the issuing of execution thereon, execution upon a judgment had before a justice of the peace obtained more than five years before and upon which no prior execution has been issued, will be set aside. This applies to an attachment execution as well. No. 7 March T., 1900. Rule to set aside execution and execution attachment. Opinion by SLAGLE, J. Filed March 3, 1900. It appears by the record in this case that a judgment was entered before W. A. Keener, Esq., justice of the peace of Westmoreland county, on October 11, 1892, for $131.59. It does not appear that any execution was issued by the justice. It, however, appears that bail for an appeal was duly entered, but the appeal was not filed in court as required by law. A transcript of this judgment, certified by John P. Eicher, justice of the peace, was filed in the Common Pleas of Westmoreland county upon November 23, 1899. No execution appears to have been issued out of that court. On December 4th, upon which a fl. fa. was issued to No. 3 March Term, 1900, and an execution attachment to No. 10 March Term, 1900. The motion is to strike off these executions. Under the Act of March 20, 1810, % 10, Purd. Dig. 1143, pl. 111, the judgment upon a transcript filed under section 10 of that act was not such a judgment as might be transferred to another county unless the Act of April 16, 1840, Purd. Dig. 1099, pl. 30, but it may be that the provisions of the Act of June 24, 1885, P. L. 160, Purd Dig. 1143, pl. 112, are broad enough to make it such. In Smith v. Wehrly, 157 Pa. 407, it was held that the Act of May 5, 1854, P. L. 581, Purd. Dig. 1145, pl. 116, was not repealed by the Act of 1885, above referred to, and the Act of March 19, 1887, P. L. 132, Purd. Dig. 829, pl. 6, did not apply to judgments before aldermen unless they had become judgments of a court of record by proceedings in such court. It was therefore held in that case that an execution issued upon a transcript filed more than five years after judgment before the magistrate was unauthorized and should be set aside. The fi. fa. in this case will therefore be set aside. Opinion by WHITE, P. J. Filed March 17, 1900. The proposed borough extends along the Pennsylvania Railroad, from East to West, about 9,000 feet, or one and a half miles. It is all taken from the north side of Versailles township, except a small portion on the east, We think the reasons given by Justice DEAN from Patton township. More than two-thirds in Smith v. Wehrly, why a fi. fa. will not be of the area is the property of the Pennsylvaissued after five years, will apply with equal nia Railroad Company, used for shops and force to execution attachments. If we felt at yards, and covered with a net work of tracks. liberty so to do we would be disposed to hold This portion extends up to the north line of with Judge ARNOLD in his opinion in Sweeting | Versailles township, and the northern bounv. Wanamaker, 36 W. N. C. 279, that the decis- dary of the proposed borough, extending the ions in Ogilsby v. Lee, 7 W. & S. 444, and other entire length from East to West. The portion cases which held that an attachment execution south of the southern line of the railroad propmight be issued at the time fixed by statute for erty, is very uncouth and irregular in shape. issuing executions were superseded by the Act It is chiefly a narrow strip, a mile and a half of April 29, 1844, P. L. 512, and by Act of March long, with two triangular projections into the 20, 1845, P. L. 189, Purd. Dig. 839, pl. 54, which township. About 2,000 feet from the eastern repeals so much of the Act of June 16, 1836, as end, it projects down 1,000 feet, and then falls requires personal service upon the defendant. back to 400 feet in width. Near the middle But we find that after the passage of those acts there is a projection down of 2,400 feet, quickly the Supreme Court in the case of Hebner v. falling back to 400 feet wide, and continues westCleave et al., 5 Pa. 115 held that an attachment | ward 400 feet wide for nearly 3,000 feet, widenexecution issued August 31, 1846, was valid, ing near the end to 600 feet wide. The portion and though the judgment was reversed upon owned by the railroad company is nearly level, another ground, the cause was remitted to the being the bottom land of the valley. The recourt below with instructions to proceed to en-mainder is quite hilly, with some deep ravines. force the attachment. The Act of 1845 does not appear to have been referred to in that case, but we feel bound by it as it appears to stand unreversed. The A. fa. will therefore be set aside and the motion to set aside the execution attachment refused. For plaintiff, J. A. Emery. Court of Quarter Sessions, ALLEGHENY COUNTY. In re Application for Incorporation of BOROUGH OF WALL. Toward the western end is the village of Wall, consisting chiefly of a row of houses on each side of the highway. The houses on the other portions, both westward and eastward, are scattered, and generally on the hills or hill sides, and common, ordinary dwellings. There cannot be any private buildings or improvement on the railroad property,-thus excluding more than two-thirds of the area. From the hilly character of the remainder, it cannot be built up compactly. To lay out, grade and pave streets would be very expensive; so would be any other borough improvements. As there would be no land north of the railroad property, for private residences or borough improvements, it appears evident that the only Boroughs - When incorporation of will be reason for including the railroad property was refused. Where the limits of a proposed borough extend along a railroad for one and one-half miles and reach back from the road from about 400 to 1,000 feet, and it appears that two-thirds of the land proposed to be incorporated belongs to the railroad, and the greater part of the balance is irregular and rough and diffi. cult of municipal improvement and the town itself is small, consisting of houses along one street, an application for the proposed borough will be refused. No. 3 Sept. Sess., 1899. Exceptions and remonstrance to application. to make it subject to taxation for borough purposes; and it is admitted a good portion is subject to taxation. Of course the valuation would be raised, and the taxes increased. The railroad company could receive no possible benefit from borough improvements. Being at the mercy of the borough councils, they might be taxed heavily for the benefit of others. If the company did not tamely submit to this, the councils might pass ordinances greatly annoy. ing them, and seriously interfering with their |