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To effect such repeal, there must be, as a general rule, such an irreconcilable inconsistency between the provi sions of the two statutes that they cannot stand together, or they must be so manifestly and totally repugnant as to lead necessarily to the conclusion that the Legislature intended that the later statute should repeal the former.

The Act of April 12th, 1875, which prohibits the sale of liquor upon Sunday, and provides a penalty by fine, does not repeal by implication the prior Act of February 26th, 1855, which prohibits the sale of liquor on Sunday and provides a penalty by fine and imprisonment.

The purchasers and holders acquired them with | tion, yet the leaning of the Courts is strongly against such that character reasonably stamped on their face. construction. Why then shall they not draw interest after maturity? Why shall not the maker of this collateral agreement fulfil it, or suffer the usual penalty for its violation? The maker's act fairly intended to produce such effect. Whether they were afterwards actually detached from the original bonds is unimportant. They possessed the same independent agreement to pay the sums stated at the times specified. The company unjustly refused to pay the coupons according to the agreement. It is, therefore, equitable that they should draw interest. That they would do so is clearly implied by the terms of the contract (Bainbridge v. Wilcocks, 1 Bald. 536); interest is therefore equitably demandable. (Fries 7. Watson, 5 S. & R. 222.) The justice in holding that such coupons do draw interest was distinctly recognized, and the liability therefor affirmed in County of Beaver v. Armstrong (8 Wright, 63).

v.

The other obligations, called interest warrants, are also coupons. They are for the payment of money at certain times therein specified. The language thereof differs some from the former, but the purpose and the intention are the same; although they lack express words of negotiability, yet they were executed to secure the payment of the sums therein stated before the maturity of the bonds to which they were attached. They were so prepared as to be detached therefrom, and give a separate cause of action. They were untrammelled by the name of any payee thereon to restrict the rights of the holder. The undoubted purpose and intention of these coupons being so clear it follows that they draw interest after maturity. Although the consideration on which they were based is the interest on bonds, yet that does not change the effect to be given to them. In a suit on a similar coupon it was so held in North Penna. R. R. Co. v. Adams (4 P. F. Smith, 94). The learned Judge committed no error in ordering judgment for want of a sufficient affidavit of defence for the amount of the claim.

Judgment affirmed. Opinion by MERCUR, C. J. [See preceding case.]

Oct. & Nov. '83, 53.

D. H.

L. L., Jr.

Certiorari to the Quarter Sessions of Westmoreland County.

Indictment by the Commonwealth of Pennsylvania against John Sifred, Sr., and John Sifred, Jr., for selling and permitting liquor to be sold at their tavern on Sunday. The defendants pleaded guilty, and the Court sentenced the defendants to pay a fine of $100 each, and be imprisoned in the county jail for sixty days, and pay the costs of prosecution. Thereupon the defendants (having obtained a special allocatur) took this writ of certiorari, assigning for error the said sentence.

It was admitted on the argument that the indictment was drawn, and sentence pronounced, under the Act of February 26, 1855 (P. L. 53; Purd. Dig. 946, pl. 40), which provides as fol

lows:

"Section I It shall not be lawful for any person or persons to sell, trade, or barter in any spirituous or malt liquors, wine, or cider, on the first day of the week, commonly called Sunday; or for the keeper or keepers of any hotel, inn, tavern, ale-house, beer-house or other public house or place, knowingly to allow or permit any spirituous or malt liquors, wine or cider, to be drank on or within the premises, or house occupied or kept by such keeper or keepers, his, her, or their agents or servants, on the said first day of the week."

Section 2 provides for the recovery by civil process of a penalty for violation.

"Section 3. In addition to the civil penalties imposed by the last preceding section (section 2) for a violation of the provisions of the first section of this Act, every person who shall violate the provisions of that section, shall be taken and deemed to have committed a misdemeanor, and shall, on conviction thereof, in any criminal court in this Commonwealth, be fined in any sum not less than ten, nor more than one hundred dollars, and be imprisoned in the county jail for a period not less than ten, nor more than sixty days, at the discretion of the Court."

Section 11 of the Act of April 12, 1875 (P. L. 40), is as follows:

"Section II. That it shall not be lawful for any person, October 3, 1883. with or without license, to sell to any person any intoxicating drink, on any day on which elections are now, or hereafter may be required to be held, nor on Sunday, nor at any time to a minor or to a person visibly affected by intoxicating drinks."

Sifred v. Commonwealth.
Statutes-Repeal of, by implication-Acts of
1855 and 1875, prohibiting sale of liquors on
Sunday.

While a later statute may repeal a former statute, without express language to that effect, by necessary implica

Section 4 of the same Act provides:

"That any sale made of vinous, spirituous, malt, or brewed liquors, or any admixture thereof, contrary to the

provisions of this law, shall be taken to be a misdemeanor, sixty days, and imposed a fine of $100 and the and upon conviction of the offence, in the Court of costs of prosecution on each under section 3 of Quarter Session of the Peace of any city or county, the said Act. person so offending shall be sentenced to pay a fine of not less than two hundred, nor more than five hundred dollars, with the costs of prosecution, and to stand convicted until the sentence of the court is complied with, not exceeding ninety days, etc."

Hazlett & Williams, with Rock, for the plaintiffs in error.

It is apparent that both Acts are in pari materia; that they declare sales of liquor on Sunday, by all persons, with license or without license, to be unlawful, and that the inconsistency and repugnancy between them, so far as the penalties are concerned, are strong and palpable. A subsequent affirmative statute is a repeal, by implication, of a former one made concerning the same matter, if it introduce a new rule upon the subject, and be evidently intended as a substitute for the former law; although it contain no express words repealing it.

Johnston Estate, 33 Penn. St. 511.
Com'th v. Cromley, I Ash. 179.
Gwinner v. R. R. Co., 55 Penn. St. 126.
Com'th v. Allegheny Co., 40 Penn. St. 348.
Keller v. Com'th, 71 Penn. St. 413.
Southwark Bank v. Com'th, 26 Penn. St. 446.
Nusser v. Com'th 25 Penn. St. 126.
Com'th v. R. R. Co., 53 Penn. St. 62.
Bartlet v. King, 12 Mass. 545.

Two punishments for the same crime, either to be visited at the uncontrolled pleasure of a subordinate magistrate, are not in harmony with our free government. It is no less important to the citizen than it is desirable to the judicial officer, that precise penalties should be ascertained, and that no more discretion should be imparted than is absolutely indispensable.

Per KING, P. J., Com'th v. Cromley, supra. W. H. Klingensmith (with him Silas A. Kline, District Attorney), for the defendant in error. There is no such repugnancy between the Acts of 1855 and 1875, as effects a repeal of the former Act by implication. The one deals with the sale of liquor on Sunday, the latter with the sale of liquor under licenses. Both can be harmoniously

construed. In the absence of an irreconcilable inconsistency between them, this Court will presume that the Legislature intended the latter Act to be auxiliary to the former. Repeals by implication are not favored.

January 7, 1884. THE COURT. The plaintiffs in error plead guilty to an indictment containing two counts. It is framed under section 1 of the Act of 26th February, 1855 (Pur. Dig. 946, pl. 38). The first count charges them with selling liquors on Sunday; the other count charges that they did unlawfully and knowingly allow and permit liquors to be drunk on Sunday on and within the house and premises kept and maintained by them. The Court thereupon sentenced them to imprisonment for a period of

The plaintiffs in error claim that in so far as this Act of 1855 prescribed the punishment for selling liquors on Sunday, it was repealed by the Act of 12th April, 1875 (P. L. 40). Error is assigned to the sentence.

It is well settled that express provision of a subsequent law is not absolutely necessary to repeal a statute. It may be repealed by necessary implication. The leaning, however, of the Courts is strongly against repealing the positive provisions of a former statute by construction. (Dwarr. on Stat. 154.) The more natural, if not necessary, inference in all such cases is, that the Legislature intend the new law to be auxiliary to, and in aid of the purposes of the old law. There should therefore be such a manifest and total repugnancy in the provisions of the new law as to lead to the conclusion that the latter law abrogated, and was designed to abrogate, the former. There are cases, however, in which it is held that although the latter statute be not repugnant to the former one, and there be no express provision in the latter repealing the former, yet if the latter prescribe the only rules which shall govern, it repeals the former one in latter in the governing rule. (Daviess v. Fairall those respects in which it differs from the barn, 3 How. U. S. R. 636.) The general tive repugnancy between the provisions of the rule, however, is that there must be such a posinew statute and the old, that they cannot stand together or be consistently reconciled. (Wallace v. Bassett, 41 Barb. 92; McCool v. Smith, 1 Black, U. S. R. 459; Bank v. Commonwealth, 10 Barr, 442; Brown v. County Commissioners, 9 Harris, 37.) If it be possible that both can stand by construction, then the proper inquiry is, what was the intention of the Legislature? Did it mean to repeal the former law, or was the new law intended to be merely cumulative? (United States v. Case of Hair Pencils, 1 Paine, 400.)

The Act of 1875 referred to contains twelve sections, yet no one of them makes any reference to the Act of 1855. Section 1 expressly repeals the Act of 27th March, 1872, which authorized a vote to be taken every three years on the question of granting licenses to sell intoxicating liquors. Section 2 provides when and under what rules licenses for the sale of liquors may be granted. Section 3 provides for the classification of hotels, inns, and taverns, and specifies the sum which those of each class shall pay. Then section 4, inter alia, declares "that any sale made of vinous, spirituous, malt or brewed liquors, or any admixture thereof, contrary to the provisions of this law, shall be taken to be a misdemeanor, and upon the conviction of the offence in the Court of Quarter Sessions of the

Peace of any city or county, the person so offend- I present separately the different requirements of ing shall be sentenced to pay a fine of not less the law, and to provide a specific penalty for than $200, nor more than $500."

the violation of each. Thus the punishment prescribed in section 4 was designed to apply to violations of the law under previous sections of the Act. Section 6 made certain acts a crime, and immediately provided a specific penalty therefor. In like manner section 7 created an offence, and prescribed the penalty to be imposed on the offender.

No section prior to section 11, in any manner refers to any of the offences therein stated. We are satisfied there was no intention to subject a person guilty of the acts mentioned in the eleventh section to the penalties prescribed in the fourth section. The reasonable conclusion is, that section II was added through abundance of caution to negative any presumption that the licenses granted under sections 2 and 3 would authorize the sale of liquor on any of the days mentioned in section 11.

The previous sections of the Act changed the classification and increased the sums which the keepers of hotels were required to pay for licenses under previous laws, and section 4 imposed the penalty stated for their violation. Section 5 provides that the fines, penalties, and proceeds of forfeited bonds be paid to the city or county treasurer. Section 6 directs every constable to make return of retailers of liquors, and also under oath of any unlicensed place within his bailiwick, within his knowledge, kept and maintained in violation of this Act, and upon his wilful failure to do so, after being duly notified in writing, he shall be deemed guilty of the crime of perjury, and subject to its penalties. Section 7 provides, when a person has the habit of drinking intoxicating liquor to excess, that either member of his family therein specified may give written notice to any person not to The Act of 8th May, 1854, authorized the sell or deliver intoxicating liquor to the person imposition of a fine and imprisonment for wilhaving such habit, and if the person so notified fully furnishing intoxicating drinks to any person does sell and deliver such liquor to the person of known intemperate habits, to a minor, or to having such habit, the person giving the notice an insane person, for use as a beverage. The may in action of tort recover of the person noti- Act of 26th February, 1855, before cited, aufied any sum not less than $50, nor more than thorizes the imposition of a fine and imprison$500, as may be assessed by "the Court or ment on one selling liquor on Sunday, or on one Judge" as damages. Section 8 prohibits non-permitting it to be drank on that day on his preresidents of this Commonwealth from engaging mises. The Act of 13th March, 1872, makes it in selling, trading, or vending intoxicating liquors a misdemeanor to sell, furnish, or give away, to within the Commonwealth. Section 9 provides be used as a drink, any intoxicating beverage on for the cancellation of bonds given under the election days, when by law, an election is in Act, and the releasing of sureties therefrom. progress in said district, and subjects the offender Section 10 prescribes the form and condition of to imprisonment for a term of not more than the bond which shall be executed to obtain a one hundred days, and to a fine of not more license to sell intoxicating drinks. Section 11 than five hundred dollars. declares it shall not be lawful for any person, with or without license, to sell to any person any intoxicating drink on any day on which elections are now or hereafter may be required to be held, nor on Sunday, nor at any time to a minor or to a person visibly affected by intoxicating drinks." This is the whole section. Neither it nor the subsequent section prescribes any penalty for its violation. It is by virtue of this section, standing as it does, removed from section 4, and making no reference thereto, that the plaintiffs in error claim the punishment prescribed by the Act of 1855 is repealed.

66

We have thus referred to the Act of 1875 at length and in detail, to show that no part thereof, in any manner, refers to the Act of 1855. That no repeal of the latter was intended is apparent from the whole Act of 1875

1. Any existing Act supposed to be in conflict therewith, or superseded thereby, was expressly repealed by the first section.

2. The Act clearly indicates an intention to

Although the Act of 1875 does not refer to any of these former Acts, nor to the punishments provided for those offences, yet the construction claimed for the Act of 1875, by the plaintiffs in error, would modify all those several Acts, and strike therefrom all power of the courts to sentence to imprisonment persons convicted of the offences therein stated. This is asking us to assume too much. We are not questioning legislative power to repeal or modify the sentences to be imposed. We are merely considering the question of implied intention, to be gathered from the language used. We think the power given to the Court to sentence under the Act of 1855 was in no manner repealed by the Act of 1875.

Judgment affirmed.

Opinion by MERCUR, C. J.
PAXSON, J., absent.

[Cf. Seifried v. Com'th, 12 WEEKLY NOTES, 380; S. C., 5 Out. 200.]

J. M. B.

Jan. '84, 239.

February 19, 1884. error the action of the Court in dismissing the exceptions, inter alia, as above. Several other assignments were also filed, among which was the following: (1) Because the petition contains a statement of adverse possession in another, of a portion of the land, and a writ of partition cannot issue or a partition be made in any such case.

Wistar's Appeal. Partition in Orphans' Court-Power of commissioners to allot purparts of equal value-Valuation-Act March 29, 1832—Amendments. Commissioners nominated by the heirs-at-law of a decedent, and appointed by the Orphans' Court, to make partition of the real estate whereof a decedent died seised, have power, after having divided the land into as many purparts of equal value as there are heirs, to allot to each of the heirs respectively by name one of said purparts. In such case the commissioners are not required to appraise the value of the land as a whole, or of the several purparts.

After the issuing of a writ of certiorari from the Supreme Court, on filing of affidavits showing that the land was in possession of the heirs of Richard Wistar, and not in adverse possession, and that no injustice would be done the said Richard and William Lewis Wistar, the Orphans' Court allowed the petition and writ to be amended, by striking Where a petition and writ for partition contains a state-out the statement from which adverse possession ment of adverse holding, the petition and writ may be amended in regard to such statement, even after the record has been removed, on appeal, to the Supreme Court.

Appeal of Richard Wistar and William Lewis Wistar from a decree of the Orphans' Court of Lycoming County, making partition of certain lands of Richard Wistar, deceased.

From the report of the commissioners agreed upon by the parties and appointed by the Court, the facts appeared to be as follows: Richard Wistar died in 1862, leaving surviving him five. children, Richard Wistar, William Lewis Wistar, Sarah W. Gillilan, Rachel L. Harvey, and Fanny W. Scott, and seised of four tracts of land in Lycoming County. On May 7, 1883, James M. Gillilan and Sarah W. Gillilan, his wife, in her right, Alexander E. Harvey and Rachel L. Harvey, his wife, in her right, and Lewis A. Scott, and Fanny W. Scott, his wife, in her right, presented a petition to the Orphans' Court, praying that partition be made of said lands among

the children and heirs of Richard Wistar.

The commissioners, on September 29, 1883, reported, stating that they had viewed the real estate described in said order of Court, and having due respect to the value thereof, found that the same could be equally parted and divided among the children and heirs of said Richard Wistar, deceased, without prejudice to or spoiling the whole, and have accordingly parted the same into five parts, which are of equal value, and have divided them among the said children and heirs as follows,” etc.

To this report the complainants filed, inter alia, the following exceptions: (1) Because the commissioners have not valued the real estate in said writ of partition, described as a whole, or (2) as purparts. (3) Because they have allotted the five purparts, into which they have divided the said real estate, to the five different heirs of Richard Wistar by name, and (4) because they are not authorized so to do by Act of Assembly. The Court dismissed the exceptions and confirmed the report of the commissioners, whereupon complainants took this appeal, assigning for

was inferred.

Henry Johnson and Henry C. Parsons, for appellant.

Partition cannot be made of lands in adverse possession.

Galbraith v. Green, 13 S. & R. 93.
McMasters v. Carothers, I Barr, 324.
Law v. Patterson, 1 W. & S. 184.

The land should have been divided into more purparts than parties and followed by a valuation. Darrah's Appeal, 10 Barr, 211.

The land should have been offered in open court to the highest bidder above the valuation.

Act April 24, 1856, Purdon, 1116, pl. 24. The unseated part should at least have been valued, and so disposed of.

Act March 28, 1806, Purdon, 1116, pl. 19. C. La Rue Munson (John M. Scott and Addison Candor with him), for appellee.

Full power is given the inquest or (by Act of 1855, Purdon, 1116, pl. 22) commissioners to make equal partition, if practicable; if not,

to return the valuation.

Act March 29, 1832, Purdon, 433, pl. 136.
Bishop's Appeal, 7 W. & S. 251.
Sampson's Appeal, 4 W. & S. 88.
Coke on Litt. 248, 249.

Wetherill v. Keim, 1 Watts, 320.

Darrah's Appeal, 10 Barr, 210.

McCall's Appeal, 6 Smith, 364.

Benfield's Estate, 7 WEEKLY NOTES, 575.

Scott on the Intestate Law.

then

The Court had full power to allow the amend

ment.

Wampler v. Shissler, 1 W. & S. 3.
Fury v. Stone, 2 Dallas, 184.
Berryhill v. Wells, 5 Binney, 60.
Paul v. Harden, 9 S. & R. 23.
Spackman v. Byers, 6 S. & R. 385.
Burrows v. Heysham, I Dallas, 133.
Prevost v. Nicholls, 4 Yeates, 479.
Shamburg v. Noble, 30 Smith, 160.
Waite v. Palmer, 28 Smith, 192.

October 6, 1884. THE COURT. One of the questions involved in this contention is whether the commissioners, nominated by the children and heirs-at-law of a decedent and appointed by the Orphans' Court, to make partition of the real

estate of which their father died seised, after | where the estate cannot be parted; that is, where having divided the land into as many purparts it will not admit of any division whatever withof equal value as there are heirs, have the power to allot to each child respectively by name one of said purparts. The learned President of the Orphans' Court held they had, and in this he was clearly right.

out prejudice to or spoiling the whole. Another is where the estate admits of division into as many purparts as there are parties, but not so as to make the shares of equal value; and the third is where it cannot be divided into as many shares The provisions of the Act of March 29, 1832, as there are parties, but may be advantageously revising and consolidating previous enactments divided into two or more purparts. In each of relative to partition in the Orphans' Court, and these contingencies the 37th, 38th, and 39th secthe course of practice thereunder for more than tions of the Act respectively provide for an aphalf a century, ought to be sufficient to preclude praisement by the inquest, and for allotment of any doubt as to the power in question. The 36th purparts, adjustment of owelty, etc., by the section of the Act empowers the Orphans' Court Court. But the 36th section, contemplating an of the county where the real estate of a decedent actual and equal division among all the parties is situate, on application of the widow or any entitled, makes no provision for appraisement of lineal descendants having an interest in such real the purparts or of the whole estate, nor for the estate, etc., to appoint seven or more disinter- allotment of the purparts by the Court. Doubtested persons, chosen on behalf and with the less the reason of that is, that where the joint consent of the parties; or, when the parties can- possession can be severed, without prejudice, by not so agree, to award an inquest to make parti-giving to each party a portion of the estate cortion of the real estate of such decedent; and responding in value with his interest therein, the upon the return made by the persons so ap- necessity for an appraisement does not exist, pointed, or of the inquisition taken, to give and actual partition can be so far effected by the judgment that the partition thereby made be firm inquest or commissioners as to require nothing and stable forever, and that the costs thereof be more than the final judgment or confirmation of paid by the parties concerned." (Purdon, 433, the Court under whose supervision the proceedpl. 136.) The Act of 1855 provides that "on ings are conducted. As is said by Mr. Justice the agreement and nomination of the parties the KENNEDY in Sampson's Appeal (4 W. & S. 86), Court may appoint three or more commissioners the 36th section contemplates and provides for to divide or value the real estate, with the same the partition and division of the estate, where it effect as a sheriff's inquisition." (Purd. 1116, pl. will admit of it without prejudice to or spoiling the 22.) It is very evident the commissioners, whose whole, into as many purparts or shares, of equal appointment is thus provided for, are a substitute value, as there are children or representatives of for the inquest, and hence it follows that their the intestate; and as there is no preference given duties are substantially the same. The words by the terms of this section, either on account of "inquest" and "sheriff's inquisition," employed age or sex, in making choice of the shares as in these Acts are borrowed from the common they shall be set out and designated by the inlaw, and hence the functions of "an inquest," quest, it would therefore seem as if the sheriff, or composed of the sheriff and a jury, must be ascer- the sheriff and the inquest, were to assign to each tained by reference to common law proceedings one his or her share, as in the case of partition in partition. After the interlocutory judgment, at common law, and that the Court is merely quod partitio fiat inter partes, etc., was pro-"to give judgment that the partition thereby nounced, the writ of execution de partitione made be firm and stable forever," etc. Such, we facienda issued of course to the sheriff, commanding him to make partition of the premises by the oaths of twelve good and lawful men, to assign the parts in severalty, etc., and to make report to the Court under his seal and the seals of the jurors. Then, upon the return of the inquest thus executed, followed the final judgment that the partition so made be and remain firm and stable forever. (1 Thos. Coke Litt. 699 et seq.; 2 Minor's Inst. 416.)

think, has been the generally accepted constructruction of the Act; and, so far as we are aware, the practice in the Orphans' Court has been in accordance therewith. In a recent and wellconsidered opinion, supported by the authorities therein cited, the learned President of the Orphans' Court, Fifth Judicial District, recognizes the authority of commissioners in partition to allot, in such cases, as being in accordance with well-established practice. (Rankin's Estate, 27 Pitts. Leg. Jour. 45.)

The object of partition is severance of the joint possession, and, accordingly, the Act of 1832 The construction we have given to the Act of primarily provides for an equal division of the 1832 is not affected by subsequent legislation, so estate among the parties entitled thereto, and far as the question under consideration is conthen for the several contingencies that may arise cerned. The supplement of April 11, 1835 in case that is impracticable. One of these is|(Purd. 1116, pl. 21), empowering the sheriff and

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