of the prohibition of the Act of March 21, 1836 (P. L. 143); and, therefore, a confession of judgment by the general partners in favor of individual creditors of the special partner who have loaned money to him, to be contributed as special capital, is void as against partnership creditors. Special partners are postponed in their claims upon the partnership assets, until every other partnership creditor is paid; and those who advance money to the special partner for the purpose of such contribution, stand in no better position than the special partner themselves. Money loaned to a partner and actually used in the partnership business, does not of itself create the relation of debtor and creditor between the lender and the firm. Walker v. Marine Bank, 2 Out. 574, distinguished. Appeal, by Charles H. Coffin and William H. Hurlbut, trading as Coffin & Hurlbut, from a decree of the Common Pleas No. 3, of Philadelphia County, dismissing a bill in equity filed by appellants. Bill in equity, between Charles H. Coffin and William H. Hurlbut, trading as Coffin & Hurlbut, complainants, and Henry Gruber and William P. Hoopes, trading as Gruber, Hoopes & Co., et al., respondents. The facts of the case and the opinion of LUDLOW, P. J., are fully set forth in the report of the case in the Court below (14 WEEKLY NOTES, 140). Briefly stated, the facts were as follows: Gruber, Hoopes & Co., formed a partnership under the Act of March 21, 1836, in which Albert H. Mershon was special partner. The money contributed by said Mershon was advanced for that purpose by his sister, and Kate M. Lacey (who subsequently became his wife), and was secured to them by judgment notes confessed by the said Gruber & Hoopes. The firm was then solvent. About eighteen months afterwards it failed, and said judgment notes were entered of record, and the firm's assets levied upon by executions issued thereon. Appellants, who were general creditors of the firm, filed a bill in equity praying that the said executions be stayed, and that a receiver be appointed to take charge of the assets of said firm. The Court, LUDLOW, P. J., refused to appoint a receiver, and dismissed the bill. The sheriff then proceeded to sell under the executions, but retained the proceeds of sale to await the final determination of this cause. The complainants took this appeal, assigning for error the decree of the Court, dismissing the bill. Samuel Dickson (Richard C. Dale and John C. Bullitt with him), for appellants. The confession of a judgment by a limited partnership to secure the individual creditors of the special partner, is void as to partnership creditors. McNaughton's Appeal, 12 WEEKLY NOTES, 540. Ex parte Snowball, L. R. 7, Ch. App. 534. The judgment notes signed in the individual names of Henry Gruber and William P. Hoopes, were not obligations of the limited partnership of Gruber, Hoopes & Co. The only remedy for the partnership creditors Jackson v. Sheldon, 9 Ab. Pr. 127. John A. Brown and Thomas J. Diehl, for appellees. April 21, 1884. THE COURT. This record presents an interesting question which is not free from difficulty. The plaintiffs are creditors of the firm of Gruber, Hoopes & Co., and filed this bill in the Court below against said firm and certain execution creditors thereof, under the following circumstances: The firm of Gruber, Hoopes & Co. was a limited partnership, formed under the Act of 1836, with Henry Gruber and William P. Hoopes as general partners, and A. H. Mershon as special partner. The amount of capital contributed by the special partner was $12,000 in cash, all of which he borrowed for the purpose of placing it in the firm-$7500 of it having been obtained from Mrs. Lacey, now the wife of the said Mershon, and $4500 thereof from his sister, Mrs. Cadwallader. The general partners contributed no capital. A few months after the organization of the firm, Gruber & Hoopes, the two general partners, executed in their joint individual names two judgment notes, one of them in favor of Mrs. Lacey for $7500, and the other in favor of Mrs. Cadwallader for $4500. The only consideration for these notes was the money borrowed by Mershon, and placed by him in the firm as his special capital under the articles. When these judgment notes were received by Mrs. Lacey and Mrs. Cadwallader, they returned to Mershon the notes which he had given them respectively. In less than eighteen months thereafter the firm confessed its insolvency, whereupon Mrs. Lacey, now Mrs. Mershon, and Mrs. Cadwallader entered their judgments, issued execution, and levied upon. the assets of the firm. The general creditors contested the validity of these executions upon the ground that they were illegal under the Limited Partnership Act of 1836, and filed this bill in order that this question might be properly raised and decided. The firm does not appear to have been insol- | tal, the firm is not liable therefor, although the vent when the judgment notes were given; money actually goes into the firm's business. hence, the case does not come within the letter (McNaughton's Appeal, 12 WEEKLY NOTES, 540.) of the provisions of sections 20 and 21 of the It was held in Siegel v. Chidsey (4 Casey, 279), Act of 1836, which prohibit any sale, assign- that where money was obtained on the personal ment, or transfer of the property, or effects of credit of a member of a firm, and the money such partnerships, by either a general or special went into the firm, and was used for its exclupartner, when insolvent or contemplating in-sive benefit, though this would not make the solvency. The real question is whether it is firm liable to the creditor, yet it would be a lawful for the general partners, without any con- good consideration to support the subsequent sideration, to assume the debt created by the special partner in procuring the money which he paid into the firm as his contribution of capital under its articles. The learned Judge below held that the real object of the Act of 1836 was to enable one to embark in business without any liability therefor beyond the amount contributed as capital. Assuming this to be the principal object, the Act requires a rigid adherence to its terms, and a compliance in good faith with all its provisions as the price of the privileges thereby conferred. The creditor knows by an examination of the articles that the special partner has contributed a certain amount of money in cash, which goes into the assets of the firm, is responsible for their debts, and which the special partner cannot withdraw while there is a creditor unpaid, or during the continuance of the partnership. The 15th section of the Act of 1836, provides: "No part of the sum which any special partner shall have contributed to the capital stock shall be liable for any debts previously contracted by the general partners; nor shall any part of such sum be withdrawn by him, or paid, or transferred to him in the shape of dividends, profits, or otherwise, at any time during the continuance of the partnership." It is too clear for argument under this section that the special partner cannot withdraw his capital during the partnership even with the consent of the general partners. It is a fund, set apart by the Act for the benefit of the creditors, and to some extent partakes of the nature of a trust. I do not of course mean a technical trust, which would require it to be invested and so held, but a trust in the sense that neither the special nor the general partners can lay their hands upon it except for the purposes for which it was created. It may be used in the business, for it was contributed for that purpose, but it cannot be diverted either directly or indirectly by any device whatever. Was there an attempt to divert it in this case? The defendants contend that there was not; that the money having gone into the firm, the general partners had the right to assume Mershon's liability and confess the judgment referred to. It is settled that where a partner borrows money to put into his firm as his quota of capi-| promise of the firm to pay the debt; and a judgment confessed on such assumption was not fraudulent as to creditors. In that case the fact was that the loan though made to one member of the firm, was in reality a loan to the firm, and the money was received by them and used in their business. The same doctrine was held in the subsequent case of Walker v. The Marine Bank (2 Out. 574) upon a similar state of facts, SHARSWOOD, C. J., saying: "It is certainly true that if there was no debt from the firm to the plaintiff, at the time of the giving of the note, if they had never received any consideration, they had no right to create a debt by voluntarily assuming the debt of one of the members so as to be good against their creditors. But there were facts in the case which showed that they were morally bound for the debt. They had received the money. It had entered into the business of the firm, made their purchases, paid their debts, and in equity and good conscience the plaintiff stood upon as fair a platform as other creditors who had sold them goods or advanced them money." No argument is needed to show that when one member of a firm borrows money in his individual name, but in reality for the use of his firm, and the money actually goes into the firm's assets, that the firm may assume the liability and confess a judgment therefor. The consideration for such assumption is the moral liability, and the general creditor has no ground of complaint for the reason that the assets of the firm are increased to the precise extent of the money borrowed. This principle, however, has no application to the case in hand. The firm of Gruber, Hoopes & Co. owed no debt to either of these ladies, nor were the general partners under any moral obligation to make good the money which Mershon, the special partner, had borrowed of them. Their affidavits show that they loaned the money to Mershon for the very purpose of making up the capital which he was to put in the firm as a special partner, and they knew, or were chargeable with knowledge, that when once put in it could not be withdrawn by Mershon even with the consent of the general partners during the continuance of the partnership. That the firm used the money in their business makes no difference. They had the right to do so; it was placed there for that purpose. The Jan. '83, 385. Co. v. Piper. January 11, 1884. capital put into a firm by a special partner under Chestnut Hill and Spring House Turnpike the Act of 1836, has no analogy to a sum of money borrowed by one member of a firm in an ordinary partnership and placed by him in the Turnpike-Causeways from private property on to the road not an obstruction-EvidencePhotographs. firm for their joint benefit. The practical effect of sustaining the contention of the defendants, would be to allow the special partner, with the connivance of the general partners, to withdraw his capital from the grasp of creditors whenever the condition of the firm placed it in peril. It would only be necessary for the general partners to assume the debt as soon as the firm is created, when it is of course solvent, confess a judgment therefor to be laid quietly aside until insolvency occurs, and then sweep the assets into the pocket of the special partner, or those who have furnished him with the capital, by means of an execution. If such practices were allowed in cases of limited partnerships it would open the door to all manner of frauds and devices to evade the Act of 1836, by withdrawing the capital contributed by the special partners from the grasp of creditors. The owners of land bordering upon the bed of a turnpike have a right to pass to and from their land on to the road, and to construct proper bridges or causeways for that purpose. side of the road was alleged by the turnpike company to evidence in such a case, and the fact that they did not Error to the Common Pleas No. 3, of PhilaWe are of opinion that the judgments and ex-delphia County. ecutions of the appellees are void as against cred- Case, by the Chestnut Hill and Spring House itors, not only because they have no consideration Turnpike Company against Anstina M. Piper to to support them, but also for the further reason recover damages for the erection and maintethat they are against public policy, and contra- nance of two bridges on plaintiffs' turnpike, vene the Act of 1836. While no actual fraud thereby lessening the water-carrying capacity of may have been intended they are a legal fraud. plaintiffs' ditch, whereby travel was made danThe effect is to withdraw the capital contributed by the special partner. The judgments are no On the trial, before YERKES, J., the following doubt good against the general partners individ- facts appeared: Plaintiffs were incorporated to ually, but they cannot come in upon the partner-construct and did construct a turnpike road ship property until the partnership creditors are paid. The Court below having refused the injunction prayed for, the sheriff proceeded with his executions, but retained the fund produced thereby to await the final determination of the case. The application for a receiver, therefore, becomes of no importance. The question has been turned into one of distribution. In making such distribution the fund must go to the creditors of the firm as they shall appear to be entitled, excluding the appellees, Mrs. Mershon and Mrs. Cadwallader. gerous. sixty feet wide, beginning at the top of Chestnut Hill, and thence extending into Montgomery County. About twenty-five years ago, when the streets of Chestnut Hill, including this turnpike, were curbed, thirteen feet on either side was taken for a footway, leaving only thirty-four feet of roadway for the turnpike, which is macadamized from curb to curb. The injury complained of was that the defendant in the winter of 1876-7, without the knowledge or consent of the plaintiffs, and against their will, erected in the plaintiffs' turnpike, in front of her premises, two carriage-ways or The decree is reversed at the cost of the ap-bridges at the distance of one hundred and pellees, and it is ordered that the record be re-eleven feet apart. The curb was taken out, and mitted for further proceedings in accordance with this opinion. Opinion by PAXSON, J. H. J. S. a wall was erected in its place from four to five inches lower than the top line of the curb, and another wall parallel to it was erected twenty inches further in the road, and heavy curb-stones laid from wall to wall, making the top of each bridge level with the footway. The space outside of the second wall was filled up and extended from the curb into the road about five feet, so that the plaintiffs have five more, of the thirty-four feet left after curbing on the defendant's side, | water flowing there, and if the defendant's occupied by the defendant's bridges, and practi- bridges are sufficient to clear such a ditch, she cally taken from them. The southern bridge is has done her duty and is not liable." twenty feet in length; the northern one is twenty-one feet three inches. The opening in the southern one, left for the water-way, is twenty-one inches wide and ten and one-half inches in depth. The opening in the northern one is twenty inches wide and ten inches deep. These are the sizes of the openings as they appear at the south ends. Verdict and judgment for defendant, whereupon the plaintiffs took this writ, assigning for error, inter alia, the admission of the above evidence, the refusal of their point, and the portion of the charge quoted. T. Jeff. Day and Jos. W. Hunsicker, for plaintiffs in error. S. Gormley and R. P. White, for defendant in error. The defense conceded that the bridges did obstruct the flow of the water, one witness saying one-half, but claimed that defendant had a right January 21, 1884. THE COURT. The charge to a level entrance to her premises from the as a whole contains a correct statement of the turnpike; that plaintiffs' system of drainage was law. There was no error in admitting in eviinsufficient; there being no underground drain-dence a photographic view of the premises. The age, and part of the water from the east side of the road being carried over to the west side, and that the openings in the defendant's bridges were large enough for all practical purposes. fact that it did not exhibit every part of the ground is no just cause for its exclusion. The defendant has an undoubted right to pass to and from her land. Had she constructed a bridge Defendant's counsel offered photographs of from the curb to the crown of the turnpike, it the locality in evidence. Objected to as inad- would have been much more objectionable than missible, and because they did not show the what she did do. The jury have found that in whole of the ground. Objection overruled; constructing the causeway she left a sufficient photographs admitted; exception. space for the water to flow in view of all the The plaintiffs submitted, inter alia, the follow-special circumstances shown in the evidence. ing point: Judgment affirmed. "That if the jury find from the evidence that PER CURIAM. the carriage ways or bridges constructed and maintained by defendant on and in the plaintiffs' turnpike road partially filled up, and occupied the ditch or surface drain of the plaintiffs, and thereby lessened the water-carrying capacity July, '83, 73. thereof, to the injury of the plaintiffs' turnpike road, during ordinary heavy rains, their verdict must be for plaintiffs." Refused. The Court charged the jury, inter alia, as follows: Riegel's Appeal. C. B. T. April 25, 1884. Will-Executors — Decedents' estates — Construction of clause providing for an extension of time of settlement of estate. after named executors shall have five years' time to settle A clause in a will, "that if it is necessary my hereinup my estate," will not enable sons who are executors, and amply able to pay obligations owed to the estate by them, to postpone payment of their debts, and a settlement of the estate for five years. "The defendant has a right to have convenient access to her premises. The question is not whether she could enter without the causeways. If the prior entrances were inconvenient, and if covered ways were the only way of entirely escaping the inconvenience, she had the right to build them. In building them, it was her duty to have due regard to the locality, the quantity Appeal of Joshua, Reuben, and Lewis Riegel, of water flowing there, and, in general, their executors of Daniel Riegel, deceased, from a desufficiency to carry off water flowing there. If cree of the Orphans' Court of Schuylkill County, the ditch here was sufficient to carry off the surcharging the appellants with certain sums. water, her measure of duty would have been met, if her bridge was as wide as the ditch and as high as the water ordinarily rose in heavy rains. Here, however, the plaintiff, it seems, did not rely upon a ditch only, but also upon the slope of the road. She could not spring her arch from the crown of the road to the curb. I think you should inquire what would have been a sufficient ditch at this point, having in view all the special circumstances in evidence as to the locality and Before the Auditor appointed to audit and adjust appellants' account as executors, the following facts appeared: Daniel Riegel died January 21, 1881, testate; by his will he provided, inter alia, as follows: "It is my will, and I do order that if it is necessary my hereinafter named executors shall have five years' time to settle up my estate." Testator further appointed his sons Joshua, Reuben, and Lewis, executors of his will. The said executors took out letters testamentary, and | final distribution. Were they unable to pay on March 7, 1882, filed an account from which it without serious detriment to their own estates, appeared that the said executors owed certain the provision of the will, as above cited, might sums of money to the estate, which they were able to pay, but which they claimed they were not required to pay under the clause above recited for five years, and then without interest, nor to make final settlement of the estate until that time. The Auditor reported a final distribution, charging the said executors with the amounts due by them with interest. Upon exceptions being filed and heard, this report was confirmed by the Orphans' Court, and a decree entered accordingly, whereupon the executors took this appeal, assigning for error the refusal to allow credit for the debts of the executors and the decree of the Court. W. F. Shepherd, for appellants. G. H. Gerber, for appellee. May 19, 1884. THE COURT. The appellants are the sons of Daniel Riegel, deceased, and the executors of his will. Letters executory were issued to them on the 8th of February, 1881, and in their account, which is now before us, filed March 7, 1882, they claim credit for certain bonds and notes, due and payable by themselves severally to the estate which they represent. This indebtedness had its origin during their father's lifetime, and, as the Auditor informs us, the evidences of said indebtedness, as above mentioned, were given long before his death. That these are obligations which they owe and must meet at some time, is not disputed, but they allege that the payment thereof was deferred by the sixth paragraph of the will, for five years after the testator's death, and that they are not obliged to render a final account, and make distribution until the expiration of that time. But we, with the Auditor and learned Judge of the Court below, are not able to perceive the propriety of this conclusion. "It is my will, and I do order," reads the above mentioned paragraph, “that if it is necessary, my hereinafter named executors shall have five years' time to settle up my said estate." How this gives these executors, as debtors of the estate, an extension of five years, we cannot see, nor has our perception been helped by anything which has been brought to our attention by the learned counsel for the appellants, though doubtless he has not failed to present his case in the best possible manner. The estate, with the exception only of this indebtedness on the part of the executors, had been fully settled. Moreover, the Auditor has found that they are entirely able to pay the balances due from them severally after their legacies are deducted, and that their convenience, not necessity, is all that stands in the way of a well be invoked for their relief, but as no such necessity has been made to appear, they cannot be permitted, merely for their own convenience or profit, to make use of it to the delay and disappointment of their co-legatees. The decree of the Court below is affirmed, the appeal dismissed, and the appellants are ordered to pay the costs. Opinion by GORDON, J. C. B. T. Philadelphia Steam Supply Co. v. City of Philadelphia. Act Commonwealth ex rel. Philadelphia of April 29, 1874, § 34-Philadelphia City ordinance of March 18, 1884-Streets of municipality-Board of Highway Supervisors, powers of-Duties of city officials-Powers of Mayor. (1) Motion for injunction on bill and answers. (2) Alternative mandamus, return, and demurrer thereto. These two cases involve the same question. The Philadelphia Steam Supply Company is a corporation, with a charter issued by the Governor under the general corporation Act of 1874, authorizing it to exercise the powers of a company for supplying heat to the public, under section 34 of that Act. In its bill against the city the company claims the right under the charter to enter upon any of the streets of the city for the purpose of laying down its pipes without being obliged first to obtain the permission of the authorities of the city therefor. The bill then proceeds to state that nothwithstanding its legal rights, the Mayor has threatened to prevent by force its opening of any of the streets until a permit to do so should be granted by the Chief Commissioner of Highways, and that the Commissioner refused to issue such permit. The company therefore asks in its bill that an injunction be granted against the Mayor and city officers to prevent them from interfering by force with the company's rights; and in the mandamus it asks that the Commissioner be commanded to issue a permit to the |