‘Union Glass-works,’ * * * and the same property conveyed to A. by D., assignee of the Union Glass Company, by deed dated August 17. 1869.” Held. that there was, in this agreement, no warranty. express or implied, as to the quantity of land which A. was bound to convey.

Error to common pleas, Lawrence county.

Ejectment by J ohnW. W alter against Forbes Holton and “Forbes Holton, Limited,” to enforce payment of purchase money upon articles of agreement dated January 20, 1879, for the sale by Walter to Holton of “all his right, title, interest, and claim, real and personal, in the property known as the Union Glass-works, situated in Union township, Lawrence county, and state aforesaid, and the same property conveyed to said Walter by S. W. Dana, Esq., assignee of the Union Glass Co., by deed dated August 17, 1869.” The description in said deed was: “The undivided one-half of that certain piece or parcel of land situate,” etc., “ bounded on the north by Shenango river, on the east by Shenango river, on the south by Washington street, and west by E. & P. R. R.” The price was $3,500; and the balance of the purchase money and interest due at the time of trial was $3,551.50. Between the date,of the deed to Walter and his agreement with Holton the Erie canal was abandoned, the dam below removed, and consequently the water-line along this property had receded eastward, leaving considerable land between the water-line of 1869 and 1879, which was claimed by successors to canal company’s title. Holton’s defense related to an alleged failure of Walter’s title to the strip of land uncovered by the receding of the water. Verdict for plaintiff, to be released on payment of $3,551.50, with interest and costs, in 18 months; whereupon defendant took this writ.

D. Kurtz, M. McConnell, and R. B. MeComb, for plaintiff in error.

In every contract for the sale of land a condition for a good title is implied. Fry, Spec. Perf. 99. The contract must be made clear and unambiguous to the purchaser. Fry, Spec. Perf. 359. A decree for specific performance is of grace, not of right. Mitchell v. Steinmetz, 97 Pa. St. 251. A purchaser cannot be compelled to take a doubtful title. Pratt v. Eby, 67 Pa. St. 397; K00tenbader v. Spotts, 80 Pa. St. 430.

Dana. a Long, for defendant in error.

Where a vendor contracts to convey his “right, title, and interest” in an action for purchase money, want of title is no defense. Herr-0d v. Blackburn, 56 Pa. St. 103; Smith v. Sillyman, 3 Whart. 589; Miles v. Williamson, 24 Pa. St. 135.

PER CURIAM. In the agreement of January 20, 1879, between Walter and Holton, there is found no warranty, express or implied, as to the quantity of land which the vendor was to convey. He therein agreed to sell his interest in the glass-work property to Holton, whether that was much or little; and a conveyance of that interest, according to the agreement, fulfilled to the letter his covenant. The reference to the deed of the seventeenth of August, 1869, Dana to W'alter, was not a covenant that the quantity and boundaries should be as therein set forth, but was merely a matter of identification, and descriptive of the property in which the plaintiff owned the interest which he was selling.

The judgment is affirmed.

MCPHILLIAMY 1). COMMONWEALTH.‘

BUCHANAN '0. COMMONWEALTH.
(Supreme Court of Pennsylvania. November 1, 1886.)

JURY —C())YER AND TERMINER—JURORS—NUMBER REQUIRED—DISQUALIFICATION 0F NE. To constitute a court of oyer and terminer it is necessary that 48 jurors be drawn and returned, but it is not cause of challenge to the array that only 48 jurors were summoned, one of whom was not qualified.

Uertiorari to the oyer and terminer, Lawrence county.

Indictment by commonwealth against James McPhilliamy and Angus Buchanan, for burglary and larceny.

The defendants were tried, convicted, and sentenced, and then moved, in arrest of judgment, that “the number of legal jurors required by law, to-wit, 48, were not drawn and summoned on the panel for the May term of said court; one of the persons so drawn not being a qualified elector of the county, but an unnaturalized foreigner, and not eligible as a juror, and should not have been selected as such by sheriff and commissioners.” The motion was overruled; whereupon defendants took this writ, assigning for error the overruling of this motion, and the fact that the record did not show that the prisoners were present at the trial, rendering of the verdict, or at the time of sentence.

W. 0'. Bear, for McPhilliamy, and J. L. McClelland, for Buchanan, plaintiffs in error.

Jurors must be selected from the qualified electors of the county at large. Act April 10, 1867, (Purd. Dig. 958.) A panel of 48 jurors must be summoned. Donaldson v. 00m., 95 Pa. St. 21. The record must show that defendants were present. Dunn v. 00m., 6 Pa. St. 384; Prine v. 00m., 18 Pa. St. 103; Daugherty v. Com., 69 Pa. St. 286.

S. L. McOracken, Dist. Atty., and M. McConnell, for defendant in error.

It is no cause of challenge that but 48 jurors were summoned, one of whom

was not eligible as a juror. Faust v. Com., 33 Pa. St. 338. The minutes show that defendant was present in court.

PER CURIAM. To constitute a court of oyer and terminer it is necessary that 48 jurors be drawn and returned; but, as was said in Faust v. Com, 33 Pa. St. 338, it is not cause of challenge to the array that only 48 jurors were summoned, one of whom was not qualified. So, as the defect complained of was one occurring in the drawing and summoning of the jurors, it is met and cured by the first section of the act of the twenty-first of February, 1814.

The other exception is of ready disposition by the fact that the records—the clerk’s minutes—do show that the defendants were present during the whole of the trial.

Judgment in each case affirmed; and it is ordered that the record be remitted to the court below for execution.

GUILLINGER v. ZAHNISER and another.1
(Supreme Court of Pennsylvania. November 1, 1886.)

USURY—A CTION TO RECOVER BACK—WAIVER—AGREEMENT — CONTRACT — PERFORMANCE.

The property of A., a bankrupt, was sold byhis assignee, and purchasedby 0. Before the purchase money was paid the property was sold under a judgment note, given prior to the bankruptcy, against A. and 0., held by D., and was purchased by the assignee. The assi nee and 0. agreed together that, if 0. would pay off a certain indebtedness 0% A. to D., the assignee would convey to him the property in question. 0. accordingly paid the assignee the amount of such indebtedness, and received from him a deed for the property. The assignee paid to D. the amount due the latter. 0. afterwards sued D. to recover alleged usurious interest claimed by D., and paid. Held that, having agreed to pay the assignee a certain sum of money in consideration of certain things to be done by him, the court could not look back of that contract for usury in the indebtedness of A. and 0. to D.

Error to common pleas, Mercer county.

Assu-mpsit by Seth Guillinger against D. Zahniser and another.

On August 16, 1877, the Sandy Lake Savings Bank loaned Vitalis Parks $2,715.50 on his judgment note, with Seth Guillinger as surety; judgment being entered thereon. Before this note was paid Parks was adjudged a bankrupt. E. G. Eberman being made assignee, Guillinger purchased, at the assignee’s sale, two pieces of real estate belonging to Parks for $3,300. Before the purchase money was paid the properties were sold on the above judgment; Eberman becoming the purchaser for $100, and took a deed in his own name. Afterwards the assignee and Guillinger came together, and computed the amount due the bank, and expenses thereon; the whole being fixed at $4,504.56. Mr. Guillinger agreed to raise the money to pay off these claims against Parks, and Eberman was to make him deeds for the property of Parks, which he had purchased, and also assign to him the sheriff’s deed. The above amount was paid the assignee on June 16, 1879, and by him the claims against the bankrupt were paid. The bank judgment was for $2,717.50, on which there was paid by Guillinger $100. Eberman paid the bank, on June 16, 1879, $3,056.36, which, with the $100 paid by Guillinger, made $3,156.36, the amount received by defendants. They were entitled tO receive $2,715.50 and interest, $257.97; in all $2,973.47. The difference between these amounts, $182.89, is usury; and for its recovery this suit was brought. The court instructed the jury to find for defendants, which was accordingly done, whereupon plaintifl took this writ.

J. G. White, for plaintiff in error.

Plaintiff furnished the $4,500 to Eberman in order that he might pay the bank; and this sum was not furnished as purchase money of the real estate, as the highest bid for it was but $3,300, but was simply the least money with which plaintiff could discharge his obligations on account of his suretyship for Parks. How, then, can it be said that if the bank was paid usury that the same is not paid by plaintiff? Cunningham v. Hall, 7 Gray, 559.

Miller (C Gordon, for defendants in error.

The agreement of June, 1879, was binding on plaintiff. The judgment due the bank by Mr. Guillinger was paid to the bank by Mr. Eberman in pursuance of this agreement, which was correctly construed by the court. The plaintiff agreed to pay a certain sum in consideration of certain things to be done by Mr. Eberman, and whether there was usury in any of the charges of the bank cannot be recovered in this action.

PER CURIAM. We agree with the learned judge of the court below that what was paid by Guillinger to Eberman was paid on the contract of June, 1879, and back of that contract we cannot go to look for usury in the judgment of the savings bank. No fraud was practiced upon Guillinger; and, even if something were included in the contract that he ought not to have paid, he certainly cannot retain the benefits which he gained by that contract, and at the same time recover back the money paid, or any part of it. In order to do this he must restore to Eberman, the assignee, what he got from him; but until he does this his attempted rescission, in whole or in part, comes to nothing.

The judgment is affirmed.

BROWN and others v. Fowznn and others.1
(Supreme Court of Pennsylvania. November 1, 1886.)

1. COUNTIEs~D1vrs10N 0F BOROUGH m'ro WABDS—ORDER FOR—“PROPRIETY 0F” ~PENNsYLVANIA ACT OF MAY 14, 1874.

An order for the appointment of commissioners to divide a borough into wards under the Pennsylvania act of May 14, 1874, (Purd. Dig. 201, § 2, pl. 30.) which contains no direction to them to inquire into the propriety of making such division, nor any equivalent for it, is fatally defective.

2. SAME—NOTICE OF PROCEEDINGsaREPORT OF COMMISSIONERS.

A proper notice of the proceedings under said act should be directed by the court on the filing of the petition, and the character of the notice to be given should be embodied in the order, although the act is silent on the subject. The report of the commissioners should certify specifically what notice was given, so that it may appear on the face of the proceedings that the order of court has been complied with.

Ceriiorari to quarter sessions, Butler county.

Petition for appointment of commissioners under the act of May 14, 187 4. to divide the borough of Butler into wards. The facts sufficiently appear in the opinion of the supreme court.

Lew .lfc Quistion, Wm. A. Forquer, and Frank M. Eastman, for appellants.

The act of 1874 requires that the order shall contain a direction to the commissioners to inquire into the propriety of granting the prayer of the petition. In re Division of Plum Tp., 83 Pa. St. 74; In re Division of Harrison Tp., 5 Pa. St. 447; In re Conneaut Tp., 6 Pittsb. Leg. J. 121; In re Division of Gettysburg, 90 Pa. St. 358. The order was also defective in that it does not state the kind of notice to be given. Clearfield Ind. School-dist" 79 Pa. St. 421.

Thomas Robinson, for appellees.

The cases cited by appellants were under different acts of assembly. We must look alone to the act of 1874 for the regularity of these proceedings. In re Division of Gettysburg, 90 Pa. St. 358. It will be presumed that the sessions made the appointment according to law, (In re Schuylkill Falls Road, 2 Bin. 250;) and, where the report is not palpany erroneous, the court will not interfere upon allegation of a mistake of fact. Opening New Road in Byberry, 6 Phila. 384; In re Road in Cussewago Tn, 3 Brewst. 190. The act of 1874 does not require notice. At all events, the statement that they met pursuant to legal notice is sufficient. In re Road in Springdale Tp.,. 91 Pa. St. 260.

GREEN, J. In the case In re Harrison Tp.., 5 Pa. St. 447, which was a proceeding for the erection of a new township under the act of April 15, 1834, we said, on page 450, (ROGERS, J.:)

“The first duty that the commissioners have to perform is to inquire intothe propriety of granting the prayer of the petitioners,——whether it be a. prayer for the creating of a new township, altering the lines (f a township,. or ascertaining and establishing the lines or boundaries of a township,--and to report to the court their opinion of the same, that the court may take such order thereupon as to them may appear just and reasonable. It seems, therefore, that the order of the court, which is the authority to the commissioners in the performance of their duty, should contain an explicit direction to that effect, and that the report should contain an equally explicit opinion as to the expediency or propriety of granting the prayer of the petitioners. If the proceedings be defective in either particular, it is an error for which the whole must be set aside. ”

This was followed in a precisely similar case under the same act, (In re Division of Plum Tp., 83 Pa. St. 7 3,) in which it was said, (SHARSWOOD, J .:)

“It has been settled, in a series of cases decided by this court upon the construction of this act, that the order Of the court appointing the commissioners, which is their authority for acting, must contain an explicit direction to them, according to the express terms Of the law, ' to inquire into the propriety Of granting the prayer of the petitioners.’ ”

Because the order in that case did not contain such a direction the order was reversed, and proceedings quashed.

The present case arises under the act of May 14, 1864, providing for “the dividing any borough into wards, of erecting one or more new wards out of parts of two or more adjoining wards, of dividing any wards already erected into two or more wards, of altering the lines of any wards, or ascertaining the lines or boundaries of any ward or wards.” This latter act is practically a mere copy Of the act of 1834 relating to townships in all its requirements as to the proceedings. It contains in identical words, the direction to appoint three commissioners “to inquire into the propriety of granting the prayer Of the petitioners.” The decisions under the act of 1834 are therefore directly'pertinent in cases arising under the act of 1874. The order to the commissioners in the case at bar contains no direction to them to inquire into the propriety of granting the prayer of the petitioners, nor any equivalent for it, and it is therefore fatally defective under the rulings in the cases cited.