elsewhere, earning his own living. He never received any share of the profits of the land, and brought suit against A.’s executors therefor. Held, that evidence of the value of lime or other fertilizer used by B. in farming the land was admissible as a set-off.

2. SAME—ASSUMPSIT. Whether assumpsi'l for a proportion of the rents and profits of land can be maintained by one co-tenant against another, not decided.

Error to common pleas, Snyder county.

Assumpsit by Israel Lincoln Luck against Mary E. Luck, executrix of Jeremiah Luck, deceased.

Israel Luck died in November. 1873. By his will he devised 43 acres of his land to Jeremiah Luck, his son, and Israel Lincoln Luck, his grandson, as tenants in common, and charged the land with two legacies. On April 1, 1874, Jeremiah Luck and his son, Israel Lincoln Luck, took possession of the land jointly. About August 1, 1880, Israel Lincoln Luck left his father’s family, and went to live with his aunt. J eremiah Luck had paid the two legacies himself; had paid the taxes; had done all the necessary repairs to the fences, houses, and other buildings, and put lime on the land as a fertilizer. On August 20, 1884, Jeremiah Luck died, leaving a widow, whom he appointed executrix. This action was then brought by Israel Lincoln Luck to recover his share of rents and profits. Upon the trial the jury rendered a verdict for plaintiff, and judgment was entered thereon, whereupon defendant took this writ.

Chas. Hower, for plaintiff in error.

Assumpsit does not lie for mesne profits between tenants in common, unless there is an express promise. Kline v. Jacobs, 68 Pa. St. 58; Grifiith v. Willing. 3 Bin. 317; Slefi'en v. Hartzell, 5 Whart. 450; Norris v. Gould, 15 Wkly. Notes Gas. 187; Fidler v. Delaoan, 2O Wend. 57. Our evidence of set-off should have been admitted. Anderson v. Greble, 1 Ashm. 136; Dech’s Appeal, 57 Pa. St. 472.

Chas. P. Ulrich, for defendant in error.

Assumpsit will lie under similar circumstances. Gillis v. McKinney, 6 Watts 80 S. 78; Borrell’s Adm’r v. Borrell, 33 Pa. St. 492; Gardiner M. 00. v. Heald, 5 Greenl. 384; Wright v. Oumpsty, 41 Pa. St. 112. The set-off should not be allowed. Beaty v. Bordwell, 91 Pa. St. 441.

PAXSON, J. This was an action of assztmps'it by one tenant in common against his co-tenant to recover the value of the crops raised by the latter upon the common property; in other words, for the use and occupation of the land. I am of opinion that the action will not lie under the facts of this case, in which opinion two of my colleagues concur. Three of them, however, are of a contrary opinion, and as our Brother TRUNKEY did not hear the case we are unable to pass upon the first three assignments of error.

We all agree, however, in reversing the case upon the twelfth assignment. The defendant’s counsel offered to show the amount of lime the defendant had put upon the land, and that it was necessary to put it on in order to raise the crops. The learned judge excluded this evidence upon the authority of Beaty v. Bordwell, 91 Pa. St. 440. This was error. That case does not rule this. This action was assumpsit for the value of the crops. The most that the plaintiff could recover would be the value of the crops after a proper allowance for expenses. The lime or other fertilizer put upon the land for the purpose of growing the crops was as much a part of the expenses as was the labor Of planting or harvesting it. This is too plain to need elaboration. We notice nothing in the remaining assignments which requires discussion.

Judgment reversed, and a venire facias de novo awarded.

HAYES v. BALD EAGLE VAL. R. Co. and others.1
(Supreme Court of Pennsylvania. October 4, 1886.)

PAYMENT—PnEsUMPTION 0F PAYMENT—LIEN. There is a presumption of law that a lien of indefinite duration, i. 6., that of a. contractor for the construction of a railroad, has been paid after the lapse of more than 20 years.

Appeal of Michael Hayes from the decree of the court of common pleas No. 1, Philadelphia county.

Bill in equity by Michael Hayes against the Bald Eagle Valley Railroad Company and others. The facts of the case are fully set forth in the opinion of the supreme court. Plaintiff’s bill, on general demurrer, was dismissed by the court, whereupon this appeal was taken.

Bertram Hughes, for appellant.

Plaintiff has an absolute, indefinite lien, and there can be no presumption of payment. Act January 21, 1843, (P. L. 367;) Shamokin Valley, etc., R. R. v. Malone, 85 Pa. St. 35; Tyrone c6 0. R. Co. v. Jones, 79 Pa. St. 64; section 7, Act April 25, 1850, (P. L. 570;) Fox v. Seal, 22 Wall. 424; Reed v. Reed, 46 Pa. St. 239. This bill was properly brought against these defendants. Curran v. Arkansas, 15 How. 307.

David W. Sellers, for appellees.

The act of incorporation of the Bald Eagle Valley Railroad Company, March 25, 1861, (P. L. 214,) defeats this unrecorded demand. Cacero'w v. Insurance Co., 52 Pa. St. 287. This claim is presumed to have been paid. Hamilton v. Hamilton, 18 Pa. St. 20; Irwin v. Cooper, 92 Pa. St. 304; Wagner v. Baird, 7 How. 234; Cope v. Humphreys, 14 Serg. 80 R. 15; Diemer v. Sechrist, 1 Pen. & W. 419; Ankeny v. Penrose, 18 Pa. St. 192; Pryor v. Wood, 31 Pa. St. 145; In re Potter’s Estate, 54 Pa. St. 465; Bentley’s Appeal, 11 Wkly. Notes Gas. 422; Seibert’s Appeal, 2 Wkly. Notes Gas. 53; Eckert’s Appeal, 6 Wkly. Notes Gas. 21; Slaymaker v. Wilson, 1 Pen. & W.216; Biddel v. Girard Bank, 16 Wkly. Notes Gas. 397.

TRUNKEY, J. That the plaintiff had a lien of indefinite duration, prior to all other liens on the property, for the sum due him by the Tyrone & Lockhaven Railroad Company, as contractor for the construction of the road, is incontrovertible; and the lien remained notwithstanding the judicial sale in the proceeding on the mortgage. Railway Co. v. Jones, 79 Pa. St. 60; Railroad Co. v. Malone, 85 Pa. St. 25. To that debt the statute of limitations does not apply.

Although the debt is an indefinite lien, there is nothing in the statutes to save it from the presumption of payment arising from the lapse of time. This presumption arises upon every species of security for the payment Of money. The lien of a recognizance is indefinite, yet it lasts not forever; it is subject to the legal presumption of payment after 20 years from the time of payment. Ankeny v. Penrose, 18 Pa. St. 190. The rule is in the nature of the statute of limitations, furnishing, indeed, not a legal bar, but a presumption of fact, not subject to the discretion ofxthe jury. They are bound to adopt it as satisfactory proof till the contrary appears. Cope v. Humphreys, 14 Serg. & R. 15. After the lapse of 20 years all evidences of debt excepted out of the statute of limitations are presumed to be paid. This is a rule of convenience and policy; the result of a necessary regard to the peace and security of society. Transactions cannot be fairly investigated and justly determined after a long time has involved them in uncertainty and obscurity. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life. Foulk v. Brown, 2 Watts, 209.

The plaintiff’s bill sets forth that the debt was due on March 8, 1859, from which date he claims it bears interest; that on January 29, 1861, pursuant to an order and decree of the supreme court, in a proceeding to foreclose a mortgage, the road-bed, franchises, and property Of the Tyrone & Lockhaven Railroad Company were sold to Philip M. Price for a grossly inadequate consideration; that on March 25, 1861, said Price and others were created a corporation under the name of the Bald Eagle Railroad Company, which company was invested with all the franchises and property Of the Tyrone & Lockhaven Railroad Company; and that the sum due to the plaintiff is still unpaid. This bill was filed on September 8, 1884, 25 years after the debt became due and payable, and 23 years after the judicial sale of the property of the debtor, and the organization of the Bald Eagle Railroad Company, one of the defendants. What has been the cause of delay in bringing suit nowhere appears in the bill. Not a circumstance is stated showing that the debt is unpaid. Hence, on the face Of the bill, the presumption is that the debt has been paid; and the action falls unless it is unnecessary to show facts repelling the presumption of payment. '

Where a bill is so framed as to present the objection that from lapse Of time there is a legal presumption of fact that the debt has been paid, without any attendant circumstances to obviate it, courts of equity act on the analogy of the law as to the statute of limitations, and will not entertain a suit for relief if it would be barred at law. And this Objection may be taken advantage of by demurrer; but, if it does not appear on the face of the bill, it must be taken by way of plea or answer. Story, Eq. Pl. par. 503. See paragraphs 751, 813.

In Piatt v. Vattier, 9 Pet. 405, a bill for conveyance of the legal title to real estate was dismissed, aside from the statute of limitations, because lapse of time was a bar; there being no circumstances stated in the bill, or shown in the evidence, tO overcome the adverse possession; and

V.6A.Il0.2—1O

courts of equity will not entertain stale demands. The remark of Lord CAMDEN was approvineg quoted:

“A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept on his rights, or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always alimitation of suits in this court.”

See Wagner v. Baird, 7 How. 234; Story, Eq. J ur. par. 1520.
Decree affirmed, and appeal dismissed, at the costs of the appellants.

CITY OF SCRANTON v. SILKMAN.l
(Supreme Court of Pennsylvania. October 4, 1886.)

Cons'rr'rn'rrorun LAW—ACT MAY 24, 1878—LOCAL LEGISLATION.

The Pennsylvania act of May 24,1878, (P. L. 133,) giving the right to owners of real estate to appeal from assessments to the court of common pleas. but restricting that right to counties of less than 500,000 inhabitants, is a local law, and prohibited by the third section of the seventh article of the constitu— tion of Pennsylvania.

Error to common pleas, Lackawanna county.

- This was an appeal by Catharine Silkman, under the act of May 24, 187 8, (P. L. 133,) from the decision of the board of revision of the city

of Scranton, to the court of common pleas. The city of Scranton filed

a plea demurring to the jurisdiction, for the reason that the act is uncon

stitutional and void. The court overruled the plea, and entered a decree

in favor of plaintiff, whereupon defendant took this writ.

I. H. Burns and Arthur C. Logan, for plaintiff in error.

This act forever excludes the county of Philadelphia. This case is there~ fore ruled by Davis v. Clark, 106 Pa. St. 384; Scowden’s Appeal, 96 Pa. St. 425; Com. v. Patton, 88 Pa. St. 260; McCarthy v. Com., 16 Wkly. Notes Gas. 498; S. C. 2 Atl. Rep. 423.

E. N. Willard and Everett Warren, for defendant in error.

In Davis v. Clark the act declared unconstitutional was an act for the creation of liens in certain counties. This act does not regulate the affairs of cities or counties, nor the practice and jurisdiction of courts. Besides, this act only excludes Philadelphia county, where a system of assessment and revision is alreadyin force. The reason for the decision in Davis v. Clark does not exist here.

GREEN, J. The right of appeal, asserted by the defendant in error in this case, is given only to the owners of real estate in counties of less than 500,000 inhabitants. The act of May 24, 1878, which gives this right, is therefore of limited application, and comes within our ruling in the case of Davis v. Clark, 106 Pa. St. 384, in which we held that “the exclusion of a single county from the operation of the act makes it local.” There is, no doubt, much force in the consideration that the only county which is now excluded has a system of appeal of its own, and the present law practically makes the right general which was before local; but the difficulty we experience is that we cannot consistently hold a principle of construction applicable in one case, and not applicable in another, where the same conditions exist. It is perhaps unfortunate that we are obliged to apply the doctrine of Davis v. Clark to the present case, because We thereby deprive a large class of citizens of a valuable privilege. But the remedy is with the legislature, and not with us. It is far better that the law-making power should itself correct the mischief by a new and proper enactment than that the judicial department of the government should pursue a shifting, tortuous policy, by executing a rule of construction in one case, and refusing it in another, when the circumstances of the two are the same.

We cannot doubt that the legislation we are considering comes within the prohibitions of the constitution. The third section of the seventh article provides that “the general assembly shall not pass any local or special law * * * regulating the affairs of counties, cities, townships, wards, boroughs, or school-districts.” The act in question is one which regulates the assessment and collection of taxes in the several counties of the commonwealth; and the receipt and disbursement of such moneys are certainly part of the affairs of the counties. The machinery, both for the assessment and collection of taxes for county purposes, is purely local, and the local courts are clothed with a special jurisdiction to determine controversies in relation thereto. The general subject has been so much discussed in our recent decisions that enlargement upon it is unnecessary.

Judgment reversed, and appeal stricken off, at the cost of the defendant in error.

DREISBACH, Assignee, v. MECHANIcs’ NAT. BANK OF PHILADELPHIA] (Supreme Oourt of Pennsylvania. October 4, 1886.)

ATTACHMENT—SERVICE OF—REQUIsITEs—LIEN OF ATTAOHMENT. _

It is not necessary, in order to acquire a lien upon goods by virtue of the Pennsylvania act of March 17, 1869, that the sheriff should take manual possession of the goods attached; but it is sufficient if he fully complies with the second section of the act by a proper service of the writ.

Error to common pleas, Carbon county.

This case was commenced by an attachment under the act of March 17, 1869, (Brightly’s Purd. Dig. 54,) issued by the Mechanics’ Nat. Bank of Philadelphia against the Miners’ Bank of Summit Hill, on April 16, 1883. On April 26, 1883, defendant made an assignment for the benefit of its creditors, which was recorded May 1, 1883. Before the returnday of the writ the sheriff served the attachment on the assignee. Upon this a scire faoias was issued, and upon the trial the jury rendered a verdict for plaintiff, and, judgment having been entered thereon, the as