the taxes upon it is as difficult to explain upon one hypothesis as it is upon the other. It follows, without stating it, that the purchasers of the coal in place must pay the taxes upon it. To avoid uncertainty, however, as to the discharge of such burdens as then were, or thereafter might be, imposed upon the coal mined, this clause was doubtless inserted. In the event of a distress levied for the rent, this provision might become important in connection with the clause of forfeiture contained in the contract. The interest of John Jermyn, under the contract, before suit brought, was assigned to the Delaware, Lackawanna and Western Railroad Company and the president, managers, and company of the Delaware & Hudson Canal Company. Subject to their title, the land and agreement had been conveyed and assigned to the defendants below. The former, we think, are liable to taxation for the coal, the latter for the surface, according to the valuation of each respectively.

The judgment is therefore reversed, and judgment is now entered for the defendant below on the case stated, with costs.

Court of Common Pleas of Schuylkill County.

SCHWARTZ v. HEPLER.

In an action of partition, where the plaintiff has filed his declaration, and the defendant has filed his plea, a summary judgment quod partitio fiat is improper.

Partition. Motion for judgment.

The opinion of the court was delivered June 4, 1883, by

PERSHING, P. J.-In this case the plaintiff has filed a declaration, and the defendant has appeared and filed his plea. The motion. is for a summary judgment of quod partitio fiat, based on the language of the act of assembly. Purd. Dig. 1113. This seems to be contrary to the usual practice. Issues being joined, the parties proceed to trial as in other cases. Martin v. Martin, 17 S. & R. 434. The evidence as to ouster, and the question of

legal or actual possession, is for the jury to pass on, exclusively. Swayze v. Ormsby, 2 Watts, 494. The subject is discussed at length in Lafferty v. Beale, 1 Miles, 51. Justice Huston said, in Martin v. Martin, supra, "When the defendant appears and pleads, and the facts of interest in the plaintiff, or possession are disputed, the court generally directs an issue, and these are settled by a jury, and I think this ought always to be done in such cases."

The motion for judgment is refused.

Court of Quarter Sessions of Luzerne County.

IN RE HADSALL et ux.

Poor law-Act of June 13, 1836-Liability of children and grandchildren for support of parents and grandparents.

1. Under act of 1836 (Purdon 1157, pl. 27), the children and grandchildren of a pauper are on precisely the same footing of liability for the relief of such pauper.

2. A grandchild is not discharged from this liability by proof of other grandchildren not reached by process, or even of children out of the jurisdiction of the court; his liability is individual, to be measured by his individual ability. In this case, a poor district asked for an order of relief against certain children and grandchildren of a pauper. There were other children and grandchildren either out of the jurisdiction or not served with process, some of whom were well able to give relief. None of the respondents except one, a grandson, was able to contribute towards paupers' support. Held, that said grandson was liable to the extent of his individual ability.

Rules to show cause why orders should not be made directing. Elsie Sands, Lewis Culver and Sally Ann Culver, his wife, William Culver, Henry Sands, Jonathan Sands, and Henry H. Hadsall to relieve and maintain the above-named poor persons.

The opinion of the court was delivered August 1, 1884, by RICE, P. J.-James Hadsall, being about ninety-seven years of age, and Elizabeth, his wife, being about eighty-eight years of age, pursuant to an order issued by two justices upon the complaint of Henry H. Hadsall, one of the respondents, became charges upon the poor district of Franklin township in April, 1883. Subsequently the overseers began these proceedings under section 28 of the act of June 13, 1836, P. L. 547, which provides as follows: "The father and grandfather, and the

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mother and grandmother, and the children and grandchildren of every poor person, not able to work, shall, at their own charge, being of sufficient ability, relieve and maintain such poor person, at such rate as the Court of Quarter Sessions of the county. where such poor person resides shall order and direct Besides these respondents, there are other children and grandchildren. Some of these, it would seem, are well able to maintain these aged people during the few remaining days of their lives, but they either reside out of the jurisdiction of the court or have not been served with process. We are therefore to inquire whether the respondents named are of sufficient ability, and are under legal obligation to relieve the poor district in whole or in part from this burden.

Sally Ann Culver is a married daughter, aged about sixty-eight years. She owns no property in her own right, and has no income from any source. Therefore, whatever contribution she and her husband may make towards her parents' maintenance must be voluntary.

Elsie Sands is another daughter. She has a life estate in a farm which brings in a rent of not more than one hundred dollars a year. She also receives a pension of ninety-four dollars. Besides these annual sums, she has no other income. She is about sixty-seven years old, is almost helpless from rheumatism, and is, therefore, to some extent, dependent on her children. So long as she was able she contributed to her parents' support. Manifestly the law does not contemplate an order by the court which will take from her any part of her already too scanty income. See Huntington v. Krickbaum, 8 Luz. Leg. Reg. 127.

The other respondents are grandsons. Henry and Jonathan Sands are sons of Elsie Sands, William Culver is a son of Sally Ann Culver, and Henry H. Hadsall is a son of Henry B. Hadsall, who resides in Nebraska. The first question is whether they are under legal obligation to contribute to their grandparents' maintenance. Our act of March 9, 1771, 1 Sm. L. 332, was a substantial copy of the English act of 43 Eliz. C. 2, S. 7. It made grandparents liable for the relief and maintenance of their grandchildren, but imposed no corresponding duty or obligation upon the latter. The revisers, in speaking of what is now the 28th

section of the act of June 13, 1836, say it "is derived from the 29th section of the act of 1771. We have added grandchildren to the enumeration of persons under legal obligation to relieve and maintain poor relations; conceiving that, as grandparents were already bound to support grandchildren, the obligation ought to be reciprocal." Wertz v. Blair Co., 16 Sm. 18. It was held by Judge Parsons, in a very well considered case, that, where the parents of the poor person are either unable to relieve and maintain him, or, being able, are out of the jurisdiction of the court, the obligation of the grandparents to do so is absolute, notwithstanding the fact that the parents are living. Guardians v. Smith, 4 Clark's Cases, 62. This decision was recognized and approved in Duffey v. Duffey, 8 Wr. 401. The obligation of grandparents and grandchildren having been made reciprocal by the act of 1836, the same principle applies here. It follows that, if these grandsons are of sufficient ability, it is their legal duty to relieve and maintain these old people, and that they may be proceeded against in the first instance, notwithstanding the fact set up in some of the answers, that there are children who are able to do so, for the reason that there are none of sufficient ability within the jurisdiction of the court. Judge Parsons' remark is pertinent here: "But I can find nothing in the law that requires the guardian of the poor to leave a responsible person and go to foreign parts to look for another party when they have one near them that is equally responsible with such other." This is all that is necessary to be said upon this question, but we do not mean to be understood as implying that these grandsons would not be liable if these conditions did not exist. The plain terms of the act of 1836 put children and grandchildren, so far as the public is concerned, on the same footing. If it had been intended to make the legal obligation of the latter conditional upon the death, poverty, or absence from the jurisdiction of the former, the legislature would have said so in express terms, and the doctrine of analogous cases relating to the liability of grandparents is against the introduction of such conditions in the act by judicial construction. For example, it was held that an order directing a person to pay a weekly sum for the maintenance of his grandsons is good without stating that their father is unable,

absent, or dead. Lord Tenderden said: "There is nothing in the act of Parliament to show that the obligation of the grandfather is absolute only in the event of the father being unable.” Rex v. Cornish, 2 B. & Ad. 498. See also Seiberts' Appeal, 7 H. 56; Duffey v. Duffey, supra.

But, without discussing this question further, we have no hesitation in concluding that, under the evidence in these cases, the liability of these grandchildren is the same as that of children. They are not discharged from their legal obligations by proof that their other grandchildren not reached by this process, or even children out of the jurisdiction of the court who are equally, if not better, able than they are. The liability of each is an individual one, and is to be measured by his individual ability. Their first duty is, of course, to the families immediately dependent upon them, and, if they are only able to discharge that duty, the law will not compel them to do more, however strongly sentimental considerations might seem to urge them to extraordinary efforts and sacrifices. If the parties served with process are not of sufficient ability, taking into consideration their duty to their immediate families to contribute the entire amount required for the maintenance of their grandparents, but still are able to contribute a portion of the amount that they may require, we have no doubt that the power of the court to fix the rates and to make necessary orders authorizes us to direct each one to furnish relief according to his ability. This results from what we have said as to their several liability.

Applying these rules to the evidence, we conclude that Henry Sands, Jonathan Sands, and William Culver are not of sufficient ability in the meaning of the law to authorize the court to make any order against them at the present time. To do so, in view of the evidence of their present incomes respectively, would seriously embarrass them in maintaining their own immediate families. But we are also of opinion that Henry H. Hadsall, the other grandson, is of sufficient ability to contribute a small amount in each case without embarrassment.

No. 130, December session, 1883.

And now, to wit: August 1, 1884, the rule as to Elsie Sands, Lewis Culver and Sally Ann Culver, his wife, Henry and Jona