and payable. The company bad right of action for its recovery immediater after it became due. No false representation of fact is alleged, and the contract is not voidable. A failure on the part of the corporation to com ply with the special terms of a subscription for shares is merely a cause for an action against the company. Mor. Corp. par. 303. This principle will surely apply where the promise is to use the money after its payment as working capital.

Upon the appellants’ own contention and showing, the money for the 10 shares did not become due and payable until in the year 187 6. The bill was filed April 23, 1881. , All the calls on the prior subscriptionfor 2O shares, made more than six years before the filing of the bill, were paid. The statute of limitations is not a bar to any part of the demand.

Decree affirmed, and appeal dismissed, at costs of appellants.

LANDLORD AND TENANT—ACCEPTANCE or LEASE—SUPERIOR TITLE IN TENANT —FRAUD—MIsTAKE. A lease given in good faith by one party, and accepted by another with his eyes open. is valid and binding on both. The mere fact that the tenant has a better title than his landlord does not of itself raise the presumption that the lease was a fraud, or accepted by mistake.

Error to common pleas No. 4, Philadelphia county.

Replevin by Frank K. \Vard against the city of Philadelphia.

A triangular corner of a lot fronting on the River Schuylkill, at South street, was taken by the city of Philadelphia under the act of April 28, 1870, as a site for a bridge, and damages to the extent of $14,500 were assessed by the jury, and paid to the owner, Charles A. Rubicam. Rubicam, by deed of June 1, 1874, conveyed the entire lot to plaintiff, “subject to the rights of the city of Philadelphia to the use of that portion of the hereby granted premises taken and necessary for the construction of the bridge crossing the River Schuylkill at South street.” Plaintiff continued in undisputed possession of the whole lot, including that portion under the arches of the bridge and on the other side of the same, until 1880, when he was commanded by the commissioner of city property to deliver over to him the rents received from the triangle at the river head of the property, on the ground that the city was the owner of that tract. This he refused to do, and in 1881 the city posted bills on the premises to the effect that it was about to sell to the highest bidder a lease of the triangular tract. As this would have entirely destroyed plaintiff’s business, by cutting off his whole water front, if any one else were put in possession, he signed a lease of the property from the city for the term of three years, commencing March 1, 1881, at the annual rental of $310. Before signing another lease for this property, .he discovered that the city had not taken the premises in dispute, (the tri- ' angular tract,) and that the title thereto was not in the city, but in himself. He therefore refused to pay rent to the city, whereupon the latter distrained, and this action arose. Upon the trial, after the defendant had proved the lease, the plaintiff, having put in evidence the foregoing facts, offered the deed from Rubicam to himself to show superior title. The offer was disallowed on the ground that no fraud had been shown on the part of the city. Verdict and judgment for defendant, whereupon plaintiff took this writ.

Ellis Ames Ballard and Rufus E. Shapley, for plaintiff in error.

The doctrine of estoppel does not apply where the lease has been taken under illegal behavior. Hamilton v. Marsden, 6 Bin. 45; Brown v. Dysinger, 1 Rawle, 408, 415; Robins v. Kitchen, 8 Watts, 390; Hockenbury v. Snyder, 2 Watts & S. 240; Bashin v. Seechrisi, 6 Pa. St. 154, 163. The city is not the owner of this triangular tract, being entitled to no more than was actually necessary for the site of the bridge. Act April 28, 1870, (P. L. 1289;) Washington Cemetery v. Prospect Park R. R., 68 N. Y. 591; Redf. Rys. 156; Mills, Em. Dom. § 49; People v. Blake, 19 Cal. 579; Overman v. May, 35 Iowa, 89; Railroad Co. v. Allen, 22 Kan. 285; Western Pennsylvania R. R. v. Johnston, 59 Pa. St. 290; Pittsburgh R. R. v. Bruce, 102 Pa. St. 23; Wyoming Coal Co. v. Price, 81 Pa. St. 175; H aldeman v. Railroad 00., 50 Pa. St. 436.

Frank M. Riter, Robert Alexander, and Charles F. Warwick, City 801., for defendant in error.

There being no evidence of fraud or misrepresentation on the part of the city at the time the lease was executed, the tenant is estopped from disputing the city’s title. Jack. & G. Landl. & Ten. 336; Lessee of Hamilton v. Marsden, 6 Bin. 45; Miller v. McBrier, 14 Serg. & R. 382; H ockenbury v. Snyder, 2 Watts & S. 240; Brown v. Dysinger, l Rawle, 408; Robins v. Kitchen, 8 Watts, 390; Thayer v. Society, etc., 20 Pa. St. 60; Mays v. Dwight, 82 Pa.St. 462; Smith v. Crosland, 106 Pa. St. 413.

TRUNKEY, J. Ward’s deed is dated June 1, 1874, and is, on its face, subject to the rights of the city to the use of that portion of the premises taken and necessary for the bridge. He has been in possession of the premises since the execution of his deed. In 1881 he became a party to the lease, in which he covenanted to pay rent, and to deliver up the premises to the city at the end of the term. Before he accepted the lease he knew all the facts, saw an advertisement for a public sale, attended the sale, and became the highest bidder for the lease. Prior to the advertisement the commissioner of city property had demanded rent from Ward on the ground that the city owned the land. The commissioner claimed that the city was the owner.

The assertion at the argument that the city threatened Ward that, unless he should accept a lease, a powerful corporation would be put into possession, is a mistake. Ward testifies that the commissioner told him the city had received an offer from such corporation for the use of the premises. But the offer was not accepted. On the contrary, the lease was sold at auction to Ward himself. There is no evidence that the city ofiicer made false statements respecting the title, or that he made threats or menaces, or that he threatened to convey or lease to another person, before Ward could consult and advise with others, or that Ward was im

becile. The testimony discloses no sign of coercion. In fact, Ward knew what the title was, and preferred taking a lease to resisting the adverse claim. He does not say that it was told him, or that he believed, that a lessee under the city would have a better right to possession than the city, or could take it by force. Nor is there anything to show a mistake, that is, “some unintentional act or omission or error, arising from ignorance, surprise, imposition, or misplaced confidence.”

Where an ignorant, imbecile, and timid old man has been induced to take a lease of his own land, by misrepresentation and threats, the proof of such misrepresentation and threats need not be very strong. Robins v. Kitchen, 8 Watts, 390. If one who has no right induces the owner who is in possession to become his tenant, it will require little proof of fraud or threats or imbecility, or some undue influence, to dissolve the relation of landlord and tenant, and put the tenant into the situation in which he was before he was induced to sign the lease. Hockenbury v. Snyder, 2 Watts & S. 240. As a general rule, it is incontrovertible that a lessee is not permitted to impeach, or in any way to call into question, the title of his landlord, except he has been guilty of fraud, misrepresentation, or unfair dealing in the transaction. And the exception is more stringently applicable where the owner or tenant in possession takes the lease. It matters not whether the deception practiced originates in voluntary falsehood or in simple mistake, for the immunity it confers springs, not so much from the fraud of the lessor, as from the wrong which the deception would work upon the rights of the lessee. Baskt'n v. Seechm'st, 6 Pa. St. 154.

But deception is not to be inferred without any evidence; neither is mistake. If the lessee was in possession at the time the lease was executed, and the lessor had no title or right of possession, the lessee may resist proceedings to turn him out, because the landlord, if he fails, is in no worse condition than he was before the lease. In order, however, to give the tenant this right, it is necessary to prove that he accepted the lease in mistake, or was induced to accept it by some fraud or misrepresentation. A lease given in good faith by one party, and accepted by another with his eyes open, is valid and binding on both. The mere fact that the tenant has a better title than his landlord does not of itself raise the presumption that the lease was a fraud or accepted by mistake. Thayer v. Society of United Brethren, 20 Pa. St. 60. That case was for recovery of possession. Its doctrine could not apply with less force in a proceeding to collect rent. The same rule extends to a tenant holding over as to a tenant within the stipulated term. Tayl. Landl. & Ten. par. 705.

Judgment affirmed.

STEVEnson’s APPEAL.
(Supreme Court of Pennsylvania. May 3, 1886.)

TURNPIKES—TITLE—NON-USER—OCCUPANCY.

Non-user of the sides of a turnpike, and private occupancy, cannot divest the com any’s right, after any lapse of time, to occupy the portion previously not use by said company, the turnpike being a public road, and no title can be acquired against the public by user, nor 10st to the public by non-user.1

Appeal from' common pleas, Montgomery county.

Bill in equity by John B. Stevenson against the Willow Grove Turnpike Company for an injunction to restrain the said company from widening its road.

The facts are as follows: The defendant company was empowered by its charter to construct a turnpike road not less than 50 nor more than 60 feet. For 80 years the road from fence to fence was only 50 feet. The company began to tear down fences, and to construct their road to the full width of 60 feet. The court below refused the injunction, whereupon this writ was taken.

G. R. Fox, for appellant.

Wayne Mac Veagh, for appellee.

PER CURIAM. The title of a municipal corporation for a right of way in the soil of its streets is paramount and exclusive. No private occupancy, for whatever time, either adverse or permissive, vests a title inconsistent with the public use. Kopf v. Utter, 101 Pa. St. 27. No title can be acquired against the public by user alone, nor 10st to the public by non-user. A turnpike is a public highway. Northern Cent. Ry. Co. v. 00111., 90 Pa. St. 300; Pittsburgh, McK. &' Y. R. Co. v. Com., 104 Pa. St. 583.

The ground now in contention was unquestionably appropriated by the turnpike company. The exterior lines of the road were defined, and distinctly marked on the ground by marble stones, which still remain there in their proper places. This is wholly unlike Com. v. Miltenberger, 7 Watts, 450, where the authorities attempted to change the boundaries long after they had established them.

Decree affirmed, and appeal dismissed, at the cost of the appellants.

NOTE.

PUBLIC WAYS—ABANDONMENT BY NON—USER. Adverse user for the time prescribed by the statute of limitations destroys a right of way in whole or in part, according to circumstances, Greenmount Cemetery Uo.’s Appeal, (Pa.) 4 Atl. Rep. 528; Hamilton v. State, (1nd.) 7 N. E. Rep.9; Gregory v. Knight, (Mich) 14 N. W. Rep. 700; but it has been held that mere non—user, even for such time, will not conclusively show an abandonment, King v. Murphy, (Mass) 4 N. E. Rep. 566; and the fact that part of a highway is not used does not cause its abandonment if the other part is worked and traveled, Moore v. Roberts. (Wis.) 25 N. W. Rep. 564; State v. Wertzel, (Wis.) 22 N. W. Rep. 150; nor would the mere non-user of a street until required for actual use, Reilly v. City of Racine, (Wis.) 8 N. W. Rep. 417.

HILANDS v. COMMONWEALTH.l
(Supreme Court of Pennsylvania. October 18, 1886.)

CRIMINAL LAW—ONCE IN J EOPARDY—MURDER—INVOLUNTARY MAivsLAUGH'rEn; A. was indicted and convicted of involuntary manslaughter. When called upon to plead to the indictment, he filed a special plea, setting forth that he had been indicted and tried in the same court upon the charge of murder; that upon such previous trial he had been convicted of murder in the first degree; that this had been reversed by the supreme court, and that he had been discharged from said indictment; that the indictment for involuntary manslaughter involves the same facts and circumstances as were involved in the charge of murder; and that this last charge was for the same offense of which he had been discharged. To this plea the commonwealth demurred, and the court below sustained the demurrer. Held, that this was correct, and that the trial for murder did not place A. in jeopardy of a conviction for involuntary manslaughter.2

Error to court of oyer and terminer, Mercer county.

Indictment for involuntary manslaughter, by the commonwealth of Pennsylvania against James W. Hilands. The facts of the case are fully set forth in the opinion of the supreme court. The court below sustained the commonwealth’s demurrer to defendant’s special plea, and after conviction defendant took this writ.

J. G. W hite and Stranahan (It Bowscr, for plaintiff in error.

The result of Hilands v. Com., 17 Wkly. Notes Gas. 36, S. C. 2 Atl. Rep70, being a virtual acquittal of defendant, he should not be put on trial for another offense arising out of and included in the same transaction.

G. E. Pattersmz, Dist. Atty., for defendant in error.

The first indictment did not charge involuntary manslaughter, and he could not have been convicted of this offense under it. Walters v. Com., 44 Pa. St. 135. The first charged defendant with a felony; the second, with a misdemeanor. 00m. v. Gable, 7 Serg. 86 R. 427. He has never before been in jeopardy for this offense.

PAXSON, J. The plaintiff was indicted and convicted in the court be_ low of involuntary manslaughter. When called upon to plead to the in dictment, he filed a special plea, setting forth the fact that he had been indicted and tried in the same court upon the charge of murder; that upon such previous trial the jury had convicted him of murder in the first degree; that the judgment in that case has been reversed by the supreme court, and that he had been discharged from said indictment; that the indictment for involuntary manslaughter involves the same facts and circumstances as were involved in the charge of murder; “and that the offense charged in this indictment, (involuntary manslaughter,) under the guise of a misdemeanor, is none other than the offense of which the said defendant was discharged or acquitted at said No. one, March term, 1885.” To this plea the commonwealth entered a demurrer, and the case is before us now solely upon the effect of the pleadings.

The former case, Hilands v. Com.,will be found reported in 111 Pa. St.