record costs are set down at $230.05, and the costs of the audit at the sum of $166. The existence of this fund as an available one is due, however, to the efforts of the appellants. We agree with the learned auditor that it belongs to the creditors, and not alone to such of their number as excepted to the decree of the court below, and brought this appeal into this court. Any of them had the right to appeal. Such of them as did so expended their money for the common benefit of the class to which they belonged, and are entitled to be reimbursed before distribution is made. Distribution of a fund is to be governed by equitable considerations. Bright. Eq. Jur. 548. The right to charge a fund with costs and expenses depends on whether the litigation in which the costs and expenses were incurred was in promotion of the interests of those eventually found to be entitled to the fund. Bright. Eq. Jur. 555. Whoever had appealed, a paper book and the services of counsel were necessary. Money paid for such purposes was paid to promote the interests of all who are entitled to share in the fund, and should be borne' by the fund. The cost of the paper book, $255, should be allowed appellants, together with a reasonable sum for the services of counsel in prosecuting the appeal from the decree confirming the account of the receiver. This sum should be fixed by the learned judge of the court below, and, when added to the other expenses charged upon the fund, will complete the list. The learned auditor correctly rejected the claim for $250 attorney's fees in the original

To this should be added the allowance for attorney's fees in the case in which the paper book was prepared. No expenses connected with this appeal should be allowed, except the taxable costs. The remainder of the fund should be distributed pro rata among the creditors named in the auditor's report now before us. This need not require a recommittal of the case to the auditor, as the calculation can be readily made by the clerk, and without further cost.

We notice with surprise the following statement in the opinion of the learned judge of the court below: "The auditor, as well as every member of the bar, knows that, in equity cases particularly, only the judge who is assigned to write the opinion has any knowl edge of the evidence in the case." We refer to this extraordinary statement, not be

cause of the temper or the taste it displays, but because it is flatly untrue. After cases are heard they are examined by each of the members of the court who heard the argument, separately. They are then considered and decided upon consultation. After the decision has been made the case is assigned, and the duty imposed upon the justice to whom the assignment is made is to place upon the record the decision made by the court, and the reasons therefor. The decree in 153 Pa. St. 283, 25 Atl. 1018, was, and the decree in this case is, the unanimous judgment of the court. The writer of the opinion is responsible for any want of distinctness in the statement of the conclusions reached, for the words are his; but the conclusions he states are those of the court, whose scribe, pro hac vice, he is.

The decree appealed from is now reversed, and the record remitted, that the allowance to the appellants' counsel for services in carrying their appeal to this court, and obtaining a decree surcharging the accountant, may be made by the court below, and that the balance of the fund, after deducting the items now allowed, be distributed as herein before directed.

In re SEARD'S ESTATE.
Appeal of BURFORD.

(Supreme Court of Pennsylvania. Oct. 22, 1894.)

JUDICIAL SALES-RELIEF OF PURCHASER — Defect IN TITLE.

A purchaser at public sale of an assigned estate is not entitled to have the sale set aside because the title was not wholly in the assignor, where he was not deceived by the statement that the title would be made good, or the purchase money refunded, but knew the condition of the title.

Appeal from court of common pleas, Armstrong county.

In the matter of the assigned estate of William H. Seard. P. P. Burford filed exceptions to the confirmation of the sale of the property, which were overruled, and he appeals. Affirmed.

Orr Buffington and W. D. Patton, for appellant. James B. Neale and J. H. Painter, for appellee.

PER CURIAM. It appears that, at a public sale of the assigned estate of William H. Seard, appellant became one of the successful bidders; and the assignee, having made return of the sale accordingly, asked the court to confirm the same, etc. Exceptions to the confirmation, filed by appellant, having been overruled, the sale was confirmed, and thereupon this appeal was taken. In his opinion overruling said exceptions the learned judge says that, at the time of sale, appellant "knew that the title to this property was not wholly in W. H. Seard, and knew that the title was in W. H. Seard, C. Seard,

and J. S. Seard. Had he not known these facts after the statement had been made, as shown by the evidence, that the title would be made good, or the purchase money refunded, he would be entitled to have the sale set aside. It also appears from the evidence that after the sale was made he had some arrangements or negotiations concerning the purchasing of the J. S. Seard title, and from these facts and circumstances we conclude that he was not deceived in any manner by the statements that the title would be made good, or the money refunded." These findings of fact were warranted by the testimony, and must now be accepted as verities. As such, they are a conclusive answer to appellant's contention that he was deceived by said statements, etc. The maxim "caveat emptor" is applicable to all such sales; but, when it is made to appear that a purchaser at a judicial sale has been deceived and misled to his injury, the court will interpose, and relieve him from the consequences of such deception. De Haven's Appeal, 106 Pa. St. 612; Schug's Appeal, 14 Wkly. Notes Cas. 49. In this case, however, the learned judge has found, on quite sufficient evidence, that appellant "was not deceived in any manner" by said statements. On the contrary, he knew at the time of sale that the title was not wholly in the assignor. Decree affirmed and appeal dismissed, with costs to be paid by appellant.

the power of a school district to levy and collect taxes upon lands lying outside of its boundaries. The second is over the proper remedy for the owner of the lands against whom the collection of such extraterritorial tax is attempted. Both questions are well settled. The power of borough and township officers to levy taxes upon persons and property rests upon residence and location. The persons who live within the borough, and the lands inclosed by its lines, are subject to the jurisdiction of the borough and its officers. Persons and property located in some other borough or township are subject to the jurisdiction of the town or borough in which they belong. No power to levy and collect taxes on property outside the lines that bound the district was ever asserted until the act of June 1, 1883. This act provided that, whenever the lines that separate a borough from a township or from another borough pass through the lands of any person, such lands shall be assessed where the mansion house is situated. It is probable that the assessment of school taxes on the land of the plaintiff lying in French Creek township, by the school directors of Polk borough, was begun under the provisions of this act. But

in La Plume Borough v. Gardner, 148 Pa. St. 192, 23 Atl. 899, we held the act of June 1, 1883, to be unconstitutional, in so far as it related to townships and boroughs not separated by a county line. The rights and powers of the several taxing officers in townships and boroughs in the same county re

1. A township or borough school district cannot tax that part of a tract of land which lies outside its boundaries, unless (Act June 1, 1883) the dividing line is also a county line, and the mansion house on the tract lies within the district attempting to tax.

2. Injunction is the proper remedy of the landowner against the collection of a tax by a school district on land which it has no jurisdiction to tax.

3. The fact that a school district unlawfully levies and collects taxes on land in another school district does not prevent the latter from levying and collecting taxes on the land; and, though it does not do so, it is not entitled to injunction against the first district, nor to have refunded to it the taxes collected by the first. Appeal from court of common pleas, Venango county: Charles E. Taylor, Judge.

Suit by Robert Arthur and the school district of French Creek township against the school district of Polk borough and its collector of taxes, for injunction, etc. Judgment for defendants. Plaintiff's appeal. Reversed on appeal of Arthur.

J. H. Osmer and A. R. Osmer, for appellants. Robt. F. Glenn, for appellees.

WILLIAMS, J. Two questions are presented by this appeal. The first relates to

that act was passed. They may be exercised within the districts for which the officers were elected, but not outside of them. The plaintiff has a tract of land containing about 30 acres, which is crossed by the line separating Polk borough from French Creek township, so as to leave about 15 acres in the township. There is no mansion house upon either part of the land. The school district of Polk borough has assessed the 15 acres lying in the township with school taxes. This is not merely irregular, it is unlawful. There is no foundation whatever on which this exercise of extraterritorial jurisdiction can rest, and the collection of an unlawful tax may be restrained by injunction. The learned judge of the court below held that the remedy for the plaintiff was by an ap peal from the assessment, and that, having neglected this, he was now remediless. But from what could he appeal? It is not alleged that the valuation of the land is too high, or that the quantity assessed to him is too great. He might have applied to have the assessment divided, but the authorities of both township and borough were bound to know how much of the tract was within their lines respectively, and to know that they could not levy taxes on that which was not within them. A taxpayer is not bound to anticipate that the officers will violate the law, or attempt to enforce the collection of a

tax which they have no power to impose. When they do this he has a clear right to relief by injunction to restrain the illegal act. Markoe v. Hartranft, 6 Am. Law Reg. (N. S.) 487; Campbell v. Campbell, 26 Leg. Int. 261; Conners' Appeal, 103 Pa. St. 357; Harper's Appeal, 109 Pa. St. 9, 1 Atl. 791. When the act of the taxing officers complained of is lawful, but is done in an oppressive or unfair manner, the remedy is by appeal. But if the officers are without jurisdiction, and the act is illegal, as in the case before us, the proper remedy is by injunction.

This makes it necessary to reverse the decree, so far as it relates to Arthur, but the consideration just referred to disposes of the claim of French Creek township. That township had the right to levy and collect taxes on all the land within its boundaries. It did not do so, so far as the land of Arthur is concerned. Polk borough had no right to levy and collect taxes on land in the township. Its attempt to do so violated the rights of the landowner, but it in no way interfered with the discharge of their duties by the officers of the township. Polk borough must therefore settle with the persons whose money it has unlawfully obtained, so far as, upon all the circumstances, it is liable to refund at all, and not with the township of French Creek. And now, upon consideration of the appeal in this case, it is ordered, adjudged, and decreed that the decree of the court below be reversed so far as it relates to Robert Arthur, and that an injunction issue, as prayed for, to restrain the collection of the tax levied by the defendants upon the lands of the plaintiff lying in French Creek township, and that the defendants pay the costs accrued in this case.

In re GARDNER'S ESTATE. (Supreme Court of Pennsylvania. Oct. 22, 1894.)

WILL-PROBATE-SUFFICIENCY OF EVIDENCE.

In proceedings to probate a will which could not be found at testator's death, the facts that testator's long-settled plan of testamentary disposition was expressed in such will; that he was a man of strong character and tenacity of purpose; that he died two weeks after it was made; that after he found he was unable to distribute the rest of his estate as intended, during his lifetime, and up to the time when his physical condition rebutted any presumption of access to his will, he repeatedly expressed a wish that the scrivener who drew it, would come and make "changes" in his "will;" and that the conduct of those who surrounded him, and whose interests would be subserved by intestacy, was suspicious,-entitle proponent to an issue as to whether the will had been revoked, when such facts are opposed only by the presumption arising from nonproduction, and the testimony of those whose suspicious conduct put them on the defensive.

Appeal from orphans' court, Clarion county; E. Heath Clark, Judge.

Petition by Boston Gardner for the probate of the alleged will of Lot Gardner, deceased,

dated two weeks prior to his death. From a judgment dismissing an appeal from and affirming a report of an auditor in favor of contestants, and dismissing the petition and refusing an issue, petitioner appeals. Reversed.

B. J. Reid, F. J. Maffett, and James Craig, for appellant. J. E. Wood, John W. Reed, Harry R. Wilson, Frank R. Hindman, and J. A. F. Hoy, for appellees.

STERRETT, C. J. The burden having been on the proponents in this case to overcome the presumption of revocation which sprang out of the fact that the will which Lot Gardner admittedly executed could not be found at his death, made, not only testator's character, condition, acts, and declarations, but the conduct and interests of those whowere around him, from and after the date of his will, legitimate subjects of inquiry. "Each of these lines of proof was important in strengthening the other, and both together seem necessary to constitute full proof." Youndt v. Youndt, 3 Grant, Cas. 140. The theory of proponents being that of concealment or destruction, the latitude of proof must have been necessarily wide. Fraud is rarely capable of proof in a direct way. "It is the chain of less direct circumstances," all pointing in the same way, until there seems no other reasonable mode of reconciling them, that must usually be depended on, in reaching a conclusion. Eichenlaub v. Hall, 163 Pa. St. 201, 29 Atl. 919. The issue demanded here was whether or not there had been a revocation of the will of Lot Gardner, and was of right, unless the whole evidence of the fact alleged was so doubtful and unsatisfactory that a verdict in favor of the validity of the will would not be permitted to stand. The question was one of sufficiency of evidence. The facts that Lot Gardner'slong-settled plan of testamentary disposition was expressed in this will; that he was a man of strong character and tenacity of purpose; that so short a time elapsed from thedate of the will until he died; that after he found he would be unable to distribute the rest of his estate, as he had intended, during his lifetime, and, up to the point of timewhen his physical condition rebutted any presumption of access to the trunk in which he had placed his will, he repeatedly expressed a wish that the scrivener who had drawn, would come and make "changes" in, his "will;" and the suspicious conduct of those who surrounded him, and whose interests would plainly be subserved by intestacy, -would, standing unexplained and uncontradicted, have amply justified submission to the jury. Against these facts stand the presumption of revocation arising from nonproduction of the will, and the testimony of the witnesses whose suspicious conduct had put them on the defensive, and whose explanation was for the jury. No one claimed to

have seen or heard the testator speak of the cancellation. It rests solely upon the rebuttable presumption arising from nonproduction. The whole evidence was such as plainly required an issue, and the case must be sent back for that purpose. The decree refusing the issue, etc., is reversed and set aside, at the appellees' costs; and it is now ordered that the record be remitted to the court below, with instructions to direct an issue to the court of common pleas, in due form, for the purpose of determining the disputed questions of fact.

Appeal of KELMINSKI.

(Supreme Court of Pennsylvania. Oct. 1, 1894.)

RETAIL LIQUOR LICENSE-POWER TO REFUSE.

Under Act June 9, 1891 (P. L. 257), a retail license cannot be arbitrarily refused, any more than a wholesale license.

Appeal from court of quarter sessions, Northumberland county; C. R. Savidge,

Judge.

Bartley Kelminski applied for retail liquor license, which was refused, and he appeals. Reversed.

Voris Auter and Lewis Dewart, for appellant

McCOLLUM, J. An arbitrary refusal to grant a license to sell liquors at retail is on the same footing as a like refusal to grant a license to sell them at wholesale. The plainly-expressed purpose of the legislation in relation to both is "to restrain and regulate the sale of vinous and spirituous malt or brewed liquors or any admixture thereof." While there are two classes of licenses provided for in this legislation, the proceedings to obtain them are practically the same in each class, and so is the discretion which the court of quarter sessions has in respect to the grant or refusal of them. In either case the application for the license must conform to the provisions of the statute under which it is made, and there must be a hearing upon it at a time fixed by a rule or standing order of the court, when the applicant and all persons objecting to his application may be heard by evidence, petition, remonstrance, or counsel. It is the duty of the court to receive and consider petitions in addition to that of the applicant, for and against the application, and to refuse the license whenever, in its opinion, having due regard to the number and character of the petitioners, the same is not necessary for the accommodation of the public, or the applicant is not a fit person to have it. It is obvious, therefore, that, in forming the opinion on which the grant or refusal of a license should rest, the petitions for and against it cannot be entirely ignored. They

must be fairly considered in connection with whatever may legitimately affect the exercise of the discretion with which the court is clothed in respect to the application. The law evidently contemplates action by the court in accordance with the knowledge it has of the character of the applicant, and the needs of the locality in which he proposes to carry on business under the license, but this action is not necessarily founded upon the knowledge exclusively derived from the evidence and petitions produced on the hearing. It may, and sometimes very properly does, act of its own knowledge, obtained from observation of the applicant and acquaintance with the district. If the court, from such observation and acquaintance, knows that the applicant is not a fit person, or that his house is not necessary for the accommodation of the public, the license may be refused on such knowledge, although the petitions present a prima facie case for it. Raudenbusch's Petition, 120 Pa. St. 328, 14 Atl. 148; Gross' License, 161 Pa. St. 344, 29 Atl. 25; and Mead's License, 171 Pa. St. 375, 29 Atl. 21. In the cases in which our license legislation has been considered, there is a concurrence of opinion that the discretion which the court of quarter sessions has in passing upon applications for license is judicial in its nature, and should be exercised with due regard to the petitions and evidence in each case. bitrary refusal to so exercise it frustrates the legislative purpose, and disregards the plain duty laid upon the court by the lawmakers. A decree founded on such refusal ought, therefore, to be set aside. Is the order complained of condemned by the law, as we have stated it? The application for the license was in due form. It was supported by the petition of 85 representative citizens of the district, certifying to the necessity of the house, and the fitness of the applicant. There was no opposition to the grant of it, and the proofs were altogether in favor of it. The court was "without knowledge or the means of knowledge, other than that afforded by the petitions filed," and it said, "If this was an application for a wholesale house, we would feel bound, in view of In re Johnson's License, 156 Pa. St. 322, 26 Atl. 1066, to grant it." It seems the court thought its discretion in relation to the grant of a wholesale license was not the same as in an application for a retail license. In other words, it was of the opinion that the latter might be arbitrarily refused, while the former could not be. We think there is no warrant in the law for such a distinction as this. If it once existed it was removed by the act of June 9, 1891 (P. L. 257). It follows from these views that the decision of this court in Re Johnson's License, supra, is applicable to the case at bar, and that upon the admitted facts the license should have been granted. Order refusing a license reversed, and procedendo awarded.

CRAWFORD COUNTY et al. v. MER-
CHANTS' NAT. BANK OF MEAD-
VILLE et al.

(Supreme Court of Pennsylvania. Oct. 1,
1894.)

BANKS AND BANKING ASSIGNMENT FOR CREDIT-
ORS-RIGHTS OF CREDITORS - EQUITY JURISDIC-
TION AMENDMENT.

1. Where a bank, at the time of assigning for creditors, owns county warrants, and has deposited with it, by the county treasurer, money, the greater part of which it knows is trust money belonging to the county, the county is entitled to have the warrants delivered up, and a charge made for the amount thereof in the account of the treasurer, though he had been in the habit of drawing his check on the bank, in its favor, for the amount of county warrants held by it at various times of settlement. Sterrett, C. J., and Mitchell, J., dissenting.

2. Where a bank, at the time of assigning for creditors, owns county warrants which are in the hands of a person having no interest in them, and has deposited with it, by the county treasurer, moneys, the greater part of which it knows are trust funds belonging to the county, a suit between the county, the county treasurer, the bank assignees, and the person in whose possession are the warrants, to have them surrendered to the county, and the amount thereof charged against the account of the treasurer, is of equitable jurisdiction.

3. Where the county brought suit for such surrender against the person in whose hands were the warrants, the introduction into the case, by amendment, of the county treasurer and the bank's assignees, was proper, no change being made thereby in the character of the litigation or the cause of action.

Appeal from court of common pleas, Crawford county.

Suit by the county of Crawford and its treasurer against the Merchants' National Bank of Meadville and the assignees of Delamater & Co., bankers, for surrender of certain county warrants, the treasurer and assignees being made parties by amendment. Decree for plaintiffs. Defendant assignees appeal. Affirmed.

Thomas Roddy, Geo. W. Haskins, and John O. McClintock, for appellants. C. W. Tyler and J. W. Smith, for appellees.

GREEN, J. Although the Merchants' Bank is nominally a party to this record, they are not appellants, and have no interest in the suit. Their debt against Delamater & Co. was paid in full out of the proceeds of the sheriff's sale of Delamater & Co.'s real estate under judgments which were given to the bank by the firm or its members. As the county warrants delivered by Delamater & Co. to the Merchants' Bank were pledged as collateral for the same debts for which the judgments were confessed, the bank has not, and does not claim to have, any right to retain the warrants, and must therefore, in any event, surrender them to the assignees of Delamater & Co. The question to be decided, therefore, is simply whether the assignees are lawfully bound to surrender them to the county or to the county treasurer, and enter a charge for the

amount of the warrants in the account of the county treasurer with Delamater & Co. In the regular course of dealing between the treasurer and Delamater & Co., that is precisely what would have been done, just as it had been done many times before. It is true the treasurer was in the habit of drawing his check for the amount of the warrants at the various times of settlement, but that formality was that formality was entirely unnecessary. The right of the bank to have credit on the account for the amount of the warrants on hand was just as complete without the check as with it. The present controversy, therefore, is only a contest between the county and the county treasurer, on the one hand, and the assignees of Delamater & Co., on the other hand. But the assignees of Delamater & Co. merely stand in their shoes, and have no higher rights than they had. Bullitt v. Methodist Episcopal Church, 26 Pa. St. 108; Kent's Appeal, 87 Pa. St. 165; Morris' Appeal, 88 Pa. St. 368; Wright v. Wigton, 84 Pa. St. 163. If, then, Delamater & Co. could not have resisted a claim by either the treasurer or the county to have the warrants in the hands of Delamater & Co. charged against the account of the treasurer and delivered up, their voluntary assignees for the benefit of their creditors could not do so. Now, it is the undisputed fact that Delamater & Co. had in their hands, on deposit by the county treasurer, at the time of the assignment, money to the amount of $58,000, of which about $50,000 belonged to the county. That Delamater & Co. knew perfectly well that the account was a treasurer's account, and that the great bulk of the money in their hands to the credit of this account was trust money belonging to the county, is not only found as a fact by the master and the court below, but it is so palpably and necessarily true that no time need be wasted in the discussion of the subject. It would be an astounding proposition, therefore, to assert that, if Delamater & Co. had brought an action or actions on the warrants in question against the county, the latter could not have set up in defense the fact that at that very time Delamater & Co. had in their hands money of the county to the extent of $50,000, and therefore that the county must pay the $19,000 of warrants. Independently of the fact that it was the established course of dealing between the parties to have the warrants charged off against the treasurer's account, the defense would be good as a set-off, and also as an equitable assignment of the necessary amount of the funds in the Delamater & Co. bank to extinguish the warrants. The subject seems too plain for discussion.

There is not the least force in the objection on the ground that equity has no jurisdiction. The surrender of the warrants could not be obtained in a common-law action, but only by a decree or order in chancery. In addition to that, discovery of the outstanding