George W. Easton, J. L. Spangler, and D. H. Hastings, for the relator.

Smith V. Wilson and Thomas H. Murray,

contra.

or independent sovereignties existed which re- its territory. This independence and sovereignty quired the release of one under indictment for of the several States exists as truly as does the a violation of the laws of the State or sovereignty independence and sovereignty of the United by which he was held, upon the demand of the States from that of a foreign State or sovereignty, chief Executive of the State or sovereignty from subject only to the powers expressly conferred which he had been abducted. by the States upon the general government. It follows from this that there is no rightful authority or power on the part of one State to invade the territory of another State for any purpose whatsoever, except it be given by the Constitution of the United States. And the power to extradite fugitives from justice from one State to another is expressly given by the 4th Article, Section 2, Constitution of the United States, and the mode regulated by the Act of Congress of the 12th of February, 1793. But the facts in this case show that the prisoner was not brought into our jurisdiction in pursuance of the mode thus regulated by law.

January 2, 1885. THE COURT (after stating the facts, ut supra). The questions involved in the determination of this case are new. They are so important in their results as to require the best consideration that we can give them. It is with no desire to magnify the power of the Courts of this district that we say that the power to release the prisoner, Patrick W. Norton, and set him at large, is wholly vested therein. Under That the manner of his arrest and the means the Constitution of Pennsylvania the Judiciary employed to bring him out of the State of New is a co-ordinate branch of the government with York and within the State of Pennsylvania, conthe Executive, and in the sphere of its duties in-stitutes the crime of kidnapping at common law, dependent of the Executive, charged with the will not be denied; that it was in express violaperformance of specific duties relating to the ad- tion of the statutes of the State of New York, ministration of the law, and as affecting the lives, punishing the crime of kidnapping (vide Penal liberty, and property of the citizens of the Com- Code R. S. of New York, Sec. 211), will not be monwealth, it may not be interfered with by the disputed; that it would be so held and construed Executive department, except so far as the Execu- by the Courts of that State under the statute tive may, by the pardoning power vested in him, cannot be doubted, since the decision in the relieve the person from the penalties imposed by case of Hadden v. The People (25 New York the judgments and decrees of the Courts. And State Reports, 373). If the power to surrender this power, thus vested in the State Courts, within the prisoner was vested in the executive of the their respective territorial limits, is independent State and he refused to deliver him, no legal of the judicial power of the Courts of the Federal power exists anywhere to compel him to do so, Government, except as to the determination of even if he were a fugitive from justice. (Comquestions arising immediately under the laws and monwealth of Kentucky v. Dennison, 24 Howard, the execution thereof by the authorities and U. S. R. 66.) And the same we claim is true if officers of the United States. (Robb v. Connolly, we should refuse to release the prisoner upon the III U. S. Reports, p. 639.) demand of the executive department of the The question before us is not one of extradi-State of New York. No power but that of force tion under that part of Article 4, Section 2 of and war could compel his release. This, therethe Constitution of the United States, which fore, brings us to face the importance of the provides that "A person charged in any State question, shall this prisoner who stands indicted with treason, felony or other crime, who shall flee from justice and be found in another State, etc.," for while it cannot be doubted that the prisoner was a fugitive from justice, having fled from Pennsylvania to New York, it is not the Governor of Pennsylvania that asks for his return, so that he may be tried for a violation of the law of Pennsylvania, but it is the Governor of the asylum State that demands his release. The question is therefore one of comity between the State of New York and the State of Pennsylvania. Every sovereign State is independent of every other in the exercise of its judicial power, and one of the purposes of this judicial power is to punish all offences against the municipal laws of the State, by whomsoever committed, within

for violation of law within our jurisdiction be set \
at large, only from considerations of utility and
mutual convenience of the States of New York
and Pennsylvania, ex comitate ob reciprocam
utilitatem. We are not wholly without prece-
dent, however. In Dow's Case (6 Harris, 37),
Chief Justice GIBSON, a greater Judge than whom
never lived, said, "Had the prisoner's release
been demanded by the Executive of Michigan,
we would have been bound to set him at large.'
It was not shown nor alleged in that case that
any law of Michigan had been violated. Indeed
it is a question whether the prisoner, Dow, was
within the territorial jurisdiction of the State of
Michigan when taken. But in this case the sta-
tutes of the State of New York have been vio-

lated, aside from the invasion of her territory. | fendants from sinking wells for natural gas, and Shall it be said, then, that a Court sitting to from laying pipes or other apparatus in the city administer and vindicate the law in this case of Erie for the purpose of conducting natural shall close its eyes to the violation of the law by which the prisoner is brought within its jurisdiction? That the end to be accomplished justifies the means employed cannot and ought not to become a maxim of legal jurisprudence.

gas to any portion of said city, or from supplying the same to any person or persons or corporations for light or fuel, the complainants claiming that their company has the exclusive right to supply natural gas to the people and corporations of Erie, and that the defendant company, the "Gas Fuel Company of Erie City, Pa.," has no such corporate authority under the charter.

To deny this demand for the release of the prisoner, would be to encourage the violation of that comity which does now and ought always to exist between adjoining States in this government. There are no disputed facts, and the question. It would be, in our judgment, a precedent full of involved being one of law merely, the case has evil consequences to the citizen in his right to been submitted for the decision of the Court on be secure in his liberty. When one violates the the bill and the answer. From these it appears law and flees from justice, the Constitution of that the complainants were incorporated Decemthe United States and the Act of Congress there-ber 26, 1883, under the Act of April 29, 1874, under afford a complete remedy for his arrest and return. That occasionally the remedy may be too 'slow and the guilty escape, cannot avail in this case and overcome what to us, upon careful consideration, seems a plain duty.

the purpose of the organization being that of "supplying light and heat to the public by means of natural gas, to be conveyed in pipes or otherwise from the place of supply to the place of demand." The defendants were incorporated July 10, 1882, under the same Act, the purpose as set forth in the application for letters patent being "the manufacture and supply of gas for fuel heat in the city of Erie and district adjacent thereto."

It is urged by the complainants that the respondents have no authority under their charter to engage in the business of supplying natural gas to the public, but that they are limited to the manufacture and supply of artificial gas only, and that the complainants under their charter have the sole and exclusive right to supply natural gas for heating purposes in the city of Erie..

The 34th section of the Act of April 29, 1874, as appears by the sub-heading of that section, was intended to regulate such corporations as come under the general description of gas and water companies, but the language of the first part of the section includes not only gas and water companies, but also companies to be formed for the supply of light or heat by any other means than gas.

Another corporation, subsequently chartered under said The general purpose of the defendant comAct of 1874, for "supplying light and heat by means of natural gas," cannot claim, as against the former company was the supply of gas for fuel heat, and pany, an exclusive right to supply natural gas.

Quare, Whether the exclusive privilege granted by the 34th section of the Act of April 29, 1874, applies to a corporation for the supply of natural gas.

Motion to dissolve preliminary injunction. Hearing on bill and answer.

they must, therefore, be confined to that object, with only such powers as are necessary to effect it, including, of course, such as are incident thereto, and without which the object could not be accomplished. Were they to undertake to supply heat by any other means than that of gas, such attempt would be outside of the authority given by the charter. As, for example, there would be no right to supply heat by means of steam. It would be outside the language of the incorporation; but to hold that the respondents cannot be permitted to supply any other gas exJanuary 13, 1885. THE COURT. This is a cept such as is actually manufactured by thembill for a perpetual injunction to restrain the de-selves would, as it appears to me, be putting

The facts are stated in the opinion of the Court, infra.

Frank Gunnison, for the motion.
Benson, Brainard and Whittlesey, contra.

entirely too narrow a construction upon the ] or highways of the city, must be exercised in terms used. The purpose stated, and the privi- strict subordination to such regulations as may lege allowed is the supplying of gas for fuel heat. be adopted by councils, and that any abuse of The manner of its production is secondary and this privilege will subject the offending company immaterial. If the company confines its opera- to the intervention of the Courts on the applications to producing heat from gas, it would appear tion of the city authorities. to be within the limits of its powers without regard to how the gas is obtained, whether by sinking wells and so getting it from the earth, or by the more expensive method of evolving it from coal, as is ordinarily the method for lighting purposes.

It is now ordered that the injunction heretofore ordered be dissolved and the bill of complainants be dismissed at the cost of the complainants. Opinion by GALBRAITH, P. J.

In the city of Erie, as is well known, the Erie Gas Company, which was incorporated before heating or lighting by means of natural gas was C. P. No. 1. known or thought of in this locality, has for some years past added to their supply of manufactured gas the natural product procured from gas wells on the premises, yet it has never been suggested that this would be outside of the charter of that corporation.

The general rule of law is that corporations must be strictly limited to the powers conferred in their charters, and there are many cases bearing out this well-settled principle in Pennsylvania, but I find no decision of any Court where so narrow a construction has been given to the language of a charter as that insisted upon by the counsel for the complainants here. The rule of law is intended, on the one hand, to confine the operations of chartered companies within the purposes set forth in their charters; but on the other hand, not to so limit the plain meaning of words as to defeat the evident object of the corporation.

Whether it was ever the intention of the Legislature to confer the very exclusive privileges given by this section of the Act of 1874 upon companies organized for the production and supply of natural gas may, perhaps, become a matter for serious question. Such a mere monopoly might, perhaps, be justified in view of the costly machinery and complicated and expensive, as well as extensive apparatus required for the production of artificial gas, as seen in the gas works of the various cities and large towns throughout the countty, but certainly far otherwise where the gas is produced by the mere sinking of wells, and even the power by which it is driven through the pipes to the place of consumption, instead of steam or water engines, is simply afforded by nature's own tremendous forces, operating within the earth. But this is not a question here, but only the right of the "Erie Mining and Natural Gas Company" to an exclusive privilege as against the "Gas Fuel Company of Erie City, Pennsylvania," and which for the reasons given is decided in the negative.

It may be proper to say that the rights of these companies in occupying the streets, lanes, alleys,

January 3, 1885.

McKnight v. The Mutual Life Association. Mutual insurance companies-Execution against General and special executions—On a general judgment against a life insurance company, the Court will not limit an execution to a particular fund.

Rule to restrict an execution in conformity to the contract on which the judgment was ob tained, that is, to the particular fund raised by an assessment to be levied.

This was a suit against a mutual life association by a member, in which the plaintiff recov ered judgment, whereupon the association obtained the present rule.

The company were incorporated under the general corporation Act of 1874. The charter set forth that the losses were to be paid in every instance by an assessment upon the members, in conformity with a table, which was part of the contract of membership. There was no reserve fund required in such a corporation.

The covenant of the association contained in the policy or certificate of membership, was to pay on the death of the insured five dollars for every membership of $1000 then in the company, provided the whole amount did not exceed in any case $5000.

W. H. Smith, for the rule, cited.
Loomis v. Lane, 5 Casey, 242.

Irvine v. Lumbermen's Bank, 2 W. & S. 190.
Junkin, contra.

THE COURT. Rule discharged.

[Cf. Seitzinger v. New Era Life Association, ante, 348 ]

E. A. B.

Rule for leave to amend sheriff's return.

Upon the suggestion of George De B. Keim, Sheriff, that a certain writ of alias summons covenant against above defendant came into the office on October 31, 1884, without directions as to said defendant, that in accordance with the practice the writ was served on the tenant of premises, and advertised according to law, and returned nihil habet as to the defendant; that subsequently, on December 6, 1884, the sheriff was notified and informed by affidavit that the said defendant, Robert J. Symington, was dead, he having died on March 2, 1876, the Court granted a rule to show cause why the sheriff should not have leave to amend the return to said writ, so that instead of " Nihil habet as to defendant" it shall read "Mortuus est as to defendant." William Grew, for the rule.

J. Duross O'Bryan, for the plaintiff.

personally served, because of the death or absence of the defendant, and to save ground landlords the delay and expense of a jury trial against executors or administrators who have no interest in the case or defence to the claim. The proceedings under the Act of 1840, are made like that on a mortgage under the Act of 1705, which gave the writ of scire facias as a remedy against "divers persons who have mortgaged their lands and tenements and have died before the time of payment, and left others to succeed them, that have proved insolvent, and others (who) have neglected to pay," etc.

It has always been held in suits on mortgages that two returns of nihil habet are equivalent to a service or making known of the writ, so as to entitle the plaintiff to judgment for default of appearance after such returns. In Chambers v. Carson (2 Whart. 9) it was held that the Act of June 13, 1836, which provides that a writ of scire facias shall be served and returned in the same manner as a summons in a personal action, was intended "to direct the method of serving the scire facias when service can be made, and not to alter the return when the writ cannot be executed, or interfere with the practice of considering two nihils as equivalent to a service. The practice of the Court is really a dispensation of actual service, and the reason is, that the plaintiff having a debt of record, it would be unreasonable to require him to pursue process further for the purpose of bringing the defendant in; for without such dispensation, it may happen that the plaintiff will be delayed inconveniently, if not indefinitely."

December 27, 1884. THE COURT. The Act of April 8, 1840 (P. L. 249), is entitled "An Act for better securing the payment of ground- In Taylor v. Young (71 Pa. S. R. 81), it rents," and it provides that in actions of cove was decided that two returns of nihil to sucnant on any ground-rent deed, if the sheriff or cessive writs of scire facias on a mortage, are other officer to whom any writ of summons is equivalent to a return of "made known," and directed, shall make return thereof with nihil this whether the mortgagor be living or dead; indorsed thereon, an alias writ may be sued out, that the death of the mortgagor could not be and if the sheriff or other officer shall make re- averred against the judgment, although the death turn thereof with nihil indorsed thereon, the was suggested of record before the entry of the said two returns of nihil shall be equivalent to judgment; and that notice to the personal repreactual service, as is the practice in actions of sentatives is not necessary in such cases. The scire facias on judgments and mortgages; pro- Court took the opportunity to say that their vided that it shall be the duty of the sheriff to silence on the subject of ground-rent covenants, give notice of the alias writ, by serving a copy is not to be construed into an adjudication, that thereof on the tenant in possession, if there is a different principle is to be applied to judgments. any, or if there is no such tenant in possession, | obtained thereon on two nihils. The judgment then by posting a copy of the writ on some con- in that case is of great importance in determining spicuous part of the premises at least ten days the present question. Here the sheriff has reprevious to the return-day, and by publication turned that he "Served William Wanhof, the in one or more newspapers as the Court may, tenant in possession of the premises by rule, direct. The evident purpose and effect by leaving November 21, 1884, a true and of this Act is to provide a proceeding in rem for attested copy of the writ at his dwelling-house, the collection of ground-rents, by substituting a with an adult member of his family, and by adnotice to the tenant in possession and publication, vertising, etc., and nihil habet as to the defendin those cases in which the summons cannot be ant."

The sheriff now asks leave to amend his

return so as to make it mortuus est as to the | give a judgment against him. defendant. Where an error or mistake has been There are, however, some exceptions to this, made by the sheriff, it is usual to allow him to and the commencement of a suit by scire facias amend his return, but this is a matter within the may be considered one. We have seen already sound discretion of the Court (Cadbury v. Duval, that it is sufficient to have a return of nihil from I Tr. & Haly's Prac. by Brightly, 616). If the sheriff to the first and second or alias scire facias, the return were false or the sheriff or any other to authorize the Court to proceed therein, and person would be likely to be injured by it, we give judgment against the defendant, which may ought to permit him to make the amendment. affect both his person and property. But the proceeding by scire facias upon a mortgage, under our Act of Assembly, is one in rem, and not against the person at all, and therefore jurisdiction over his person cannot be indispensably necessary." (Pages 277 and 278.)

A scire facias to revive a judgment, and by analogy, a scire facias sur mortgage, and the summons in covenant sur ground-rent deed, under the Acts of Assembly, are proceedings to execution upon matters of record. The only defence which the terre-tenant can make is satisfaction, or that there is no such record. (Davidson, v. Thornton, 7 Pa. S. R. 128.) Executors or administrators of the covenantor have no interest in the proceedings, unless the plaintiff, by making them parties, attempts to charge the personal estate of the covenantor with the payment of the debt. And the plaintiff ought not to be compelled to pursue them, when he elects to proceed in rem against the land, under the Act of 1840.

If the person who informed the sheriff that the defendant in this suit is dead, has any interest in the suit, he has received notice in the manner prescribed by the Act, and can appear and protect his interest; but if he has no in

But is this return false? It amounts, says Mr. Justice STRONG, in Sherer v. The Easton Bank (33 Pa. S. R. 134), to an averment that the defendant has nothing in the bailiwick, no dwelling-house, no family, no residence, and no personal presence to enable the officer to make the service; and in actions commenced by summons or attachment, that the defendant has nothing whereby he may be summoned, attached, or distrained. (3 Bl. Com. 282.) A dead man has nothing, no dwelling-house, nor family, nor residence, nor personal presence, in this world at least, and a return of nihil habet as to him is as true as a return of mortuus est. So is tarde venit, which, in Pennock v. Hart (8 S. & R. 369) and Davidson v. Thornton (7 Pa. S. R. 128), was held sufficient to revive the lien of a judgment, so as to enable the plaintiff to sue out an alias scire facias after the expiration of five years from the entry of the judgment. But it is said that the return of nihil is an implied affirmation that the defendant is alive; and so, by a fiction of law, he is, in an action of scire facias, for the purposes of the judgment to foreclose the equity of redemption. The scire facias (likewise the summons in covenant sur ground-rent deed, under the Act of 1840) is no further a pro-terest he ought not to be noticed; and in any ceeding in personam, than as it is directed against event he will not be allowed to suggest the death the mortgagor, or others claiming under him, of the covenantor, and subject the plaintiff to the which entitles them to the notice prescribed by the expense of hunting up the personal representaAct of Assembly, which two nihils are, and for the tives, who may be out of the jurisdiction, and so rest it is a proceeding in rem. (Hartman v. Og- result in a return of nihil as to them; or of born, 54 Pa. S. R. 120.) In Warder v. Tainter (4 taking out letters of administration, if none have Watts, 270), it was held that two returns of nihil been issued, and delaying the plaintiff by sending habet upon successive writs of scire facias were her to a jury, when there is no defence to her valid returns to support a judginent, although the claim, besides subjecting her to liability to suit defendant was dead. Mr. Justice KENNEDY, on by others, and also to account in the Orphans' page 275, says that the law is not indifferent as Court. The Act of 1840, by requiring a service to what the sheriff shall return to a writ: "It does on the tenant in possession and publication of not consider anything, though true, that he may the writ, contemplates two returns of nihil in think proper to return to it, good; but it has lieu of personal service, and it would defeat the established and declared what shall and what very purpose of the Act, if, after the service subshall not be a good return to each particular stituted by it, the proceeding should be changed writ." He then says that "it seems that mor- into a personal suit against executors or admintuus est is a good return to a scire facias," thereby istrators, who may have no interest in the suit, showing that the doubt was not whether nihil and who, if they have any interest, may have leave habet was good, but whether mortuus est was. to appear and defend, or make any defence in "It is true that in most cases the original ejectment which they might have taken to the writ must appear by the return of the sheriff to summons. (Mevey's Appeal, 4 Pa. S. R. 80; have been served on the defendant therein Evans v. Meylert, 19 Id. 402; Tryon v. Munnamed, otherwise the Court cannot proceed to son, 77 Pa. Š. R. 250.) Indeed, it was at one