tiff was to have until the 1st of April following to redeem; the plaintiff swears that no time was fixed. The defendant purchased the property, and paid the costs of the sale, taxes, etc., with his own money. The plaintiff did not contribute a dollar towards either the purchase money or the expenses, nor did she offer to do so for three years, and even then she made no tender of the money. When the property was sold at the sheriff's sale, the times were hard, and the price of real estate very low, in Scranton. The house was old, and very much out of repair. At the time this ejectment was brought, the defendant had expended about $7,000 in repairing the house, and remodeling it, until it is now a comparatively new house, and greatly enhanced in value thereby, as well as by the advance in the values of real estate in Scranton. A considerable amount of this expenditure was made prior to any demand by the plaintiff for a reconveyance.

Under these facts, it is not difficult to apply the law. There was no resulting trust arising from the payment of the purchase money, for the plaintiff has not paid any portion of it. Nor was there any such fraud in obtaining the title as would create a resulting trust. It is now settled by repeated decisions that if one buys property at sheriff's sale, and verbally agrees to hold it in trust for the defendant, with a right of redemption in the defendant within a limited period, it is a contract vesting in parol merely, and does not transfer any title to the land. Fox v. Heffner, 1 Watts & S. 372; Kellum v. Smith, 33 Pa. St. 158. In the case last cited it was said by Justice STRONG: "When a purchaser at a sheriff's sale promises to hold for the debtor, and afterwards refuses to comply with his engagement, the fraud, if any, is not at the sale, not in the promise, but in its subsequent breach. That is too late. The plaintiff here, although not actually the judgment debtor, occupied the position of one. She owned the property bound by the judgment. Although not liable for the judgment, her property was; so that her case comes within the principle of those cited. The latest case upon this subject is Kraft v. Smith, decided last October in the Western district. It is not yet reported, but will be found in 11 Atl. Rep. 370. The subject is there treated exhaustively by our Brother GREEN, and many of the authorities cited. I need not add to what was there better said. Not only is this case barren of a resulting trust, but the testimony fails to disclose any fraud, legal or actual. The defendant admits that the plaintiff could have redeemed up to the 1st of April following the sale. The plaintiff says no time was fixed. Granted. The law then fixes a reasonable time. Equity will not give an unlimited time to redeem. It will not allow a person claiming such a right to lie by for three years, taking the chances of the market, and then, when the property has been repaired, and greatly increased in value by the change of times, come forward and demand a conveyance. To permit it in this case would allow this plaintiff to get back a property worth $15,000 for one-third of that sum. The allegation that the defendant was paid out of the rents is not sustained by the evidence. It was not proved that any rent was due at the time of the sheriff's sale. On the contrary, he had advanced $250, out of rent subsequently falling due, to enable the plaintiff to pay the interest on the Sherwood mortgage.

What has been said substantially covers all the assignments of error except the last one. This will not be discussed, because not in conformity with the rules of court. I have looked at it sufficiently to say, however, that, if the deposition was improperly rejected, it did the plaintiff no harm. Her case was too hopelessly bad to be cured by this deposition. Judgment aflirmed.

Appeal of Swartz.

(Supreme Court of Pennsylvania. March 12, 1888.)

APPEAL WHEN LIES JUDGMENT BY CONFESSION-WARRANT OF ATTORNEY.

An appeal will not lie from a judgment entered by confession in an amicable action in ejectment under the provisions of Pennsylvania act 1877, allowing appeals from money judgments entered upon warrant of attorney or judgment note.

Appeal from court of common pleas, Montour county; D. B. GREEN, Special Judge.

This was an amicable action of ejectment brought by W. A. Lyon against John Goff and C. E. Swartz. Goff had rented the property in question from Lyon. The lease contained this provision: "This demise is upon condition that the covenants of the second party shall be fully kept and performed; and on any breach thereof the estate demised shall at the election of the first party cease and determine, and the first party may re-enter the demised premises without previous notice or demand. And upon the expiration or other determination of said term, or any renewal, any attorney may appear for the second party in an amicable action of ejectment for the demised premises, in any court having jurisdiction, and confess judgment therein, with costs, in favor of the first party, or those claiming under said first party, and against the second party, and those claiming under said second party." Goff sublet the premises to the appellant Swartz. The term of the lease having expired, this action was begun, and an attorney appeared and confessed judgment by virtue of the condition in the lease. It appears that no authority was given to the attorney by the appellant Swartz. He therefore applied for a rule to show cause why the judgment should not be opened. The rule was on hearing discharged, and Swartz appeals.

H. M. Hinckley, for appellant. James Scarlett and W. J. Baldy, for appellee.

PAXSON, J. This case is ruled by Limbert's Appeal, decided at this term, and to be found in 12 Atl. Rep. 584. That case was the counterpart of this. It was an appeal from the refusal of the court below to open a judgment confessed in an amicable action of ejectment by virtue of an authority contained in a lease. We said in that case: "The use of the words warrant of attorney or judgment note,' in the act of 1877, makes it doubtful at least whether the provisions of the said act were intended to apply to any but money judgments." Subsequent reflection has strengthened this view. When the legislature referred to judgments confessed by warrant of attorney, we must assume they used the words according to their popular meaning. Every lawyer and almost every business man would understand this to mean a money judgment entered by virtue of a warrant of attorney in the usual form. It would be straining the law to apply it to a judgment confessed by an attorney in an amicable action. And the fact that the attorney has authority in writing to confess such judgment is not material. We may assume that an attorney does not confess a judgment without authority. But that authority must not be in writing. The fact that a lease confers an authority to confess a judgment against the lessee upon a given state of facts does not constitute the lease a warrant of attorney within the meaning of the act of 1877. A judgment note, though containing an authority to confess judgment, is not strictly speaking a warrant of attorney. Hence the legislature, in order to include both methods by which judgments for money are usually entered, used the expression "warrant of attorney or judgment note." It follows that no appeal lies in the case. The appeal is quashed at the costs of the appellant.

Appeal of ALLEN et al.

(Supreme Court of Pennsylvania. March 12, 1888.)

BANKS AND BANKING-NATIONAL BANKS-CASHIERS-RIGHT TO ENGAGE IN OTHER BUSINESS.

The provisions of Purd. Dig. Pa. p. 333, § 93, prohibiting the cashiers of banks from engaging in any other occupation or profession, do not apply to the cashiers of national banks.

Appeal from court of common pleas, Schuylkill county; PERSHING, President Judge.

In equity. Motion to continue a preliminary injunction. Thomas H. Carter and Lucien H. Allen were partners under the firm name of Carter, Allen & Co. Allen sold his interest to Charles F. Allen and C. F. Lloyd, and Carter, as the continuing partner, claimed the right to settle up the business of the old firm; and thereupon he obtained a preliminary injunction against Lucien H. Allen, Charles F. Allen, and C. F. Lloyd, restraining them from interfering with his control of the partnership property. At the time of the partnership between Carter and L. H. Allen, Carter was the cashier of a national bank, and it is claimed by Allen that under the prohibition contained in Purd. Dig. p. 333, § 93, prescribing a penalty for bank cashiers engaging in any other business, the partnership was a nullity, and that Carter has no rights in the property. Judgment was rendered for the complainant, Carter, and the defendants appeal.

C. F. Shindel, D. C. Henning, James Ryon, and John W. Ryon, for appellants.

Territorial locality is disregarded in the national banking act. The language of the crimes act is: "If any cashier of any bank of this common wealth." The words "of this commonwealth" are broad, and embrace every bank within this commonwealth. A national bank located in Pennsylvania is a bank of this common wealth. State sovereignty remains unabridged for the punishment of all crimes committed within the limits of a state, except so far as they have been brought within the sphere of federal jurisdiction by the penal laws of the United States. Com. v. Felton, 101 Mass. 204. The rule as settled in both Pennsylvania and the United States is that, where the authority of the states is taken away only by implication, they may continue to exercise the power until the United States exercise their power, because until such exercise there can be no incompatibility Moore v. Houston, 3 Serg. & R. 196; Buckwalter v. U. S., 11 Serg. & R. 196. As congress has seen fit to exercise the power only partially, and left the questions covered by our statutes of 1850, 1856, and crimes act of 1860, relating to cashiers, untouched, and as the states could legislate upon the subject, these statutes remain in full force.

Guy E. Farquhar and Wayne Mac Veagh, for appellee.

The provisions of the act do not apply to cashiers of national banks. Penal statutes cannot be extended to national banks. Com. v. Ketner, 8 Wkly. Notes Cas. 133.

PAXSON, J. This case is ruled by Com. v. Ketner, 8 Wkly. Notes Cas. 133. It was there held that our statutes of 1860, 1861, and 1878, defining and punishing the offense of embezzlement by cashiers of banks, had no application to such offenses committed by cashiers of national banks. It was contended, however, by the learned counsel for the appellants, that there is a material difference between that case and this, and that the rulings in the former do not apply. In Torrey's Case he had been indicted in the quarter sessions of Schuylkill county for embezzlement as cashier of a national bank. The indictment was under our state law. At the time the offense was com

mitted, it was punishable under section 5209, Rev. St. U. S. The case was heard upon habeas corpus pending the prosecution in Schuylkill county, and we held that an indictment would not lie under our state statutes, and, as the offense was not indictable at common law, we discharged the relator. In commenting upon the acts of assembly referred to, it was said in the opinion of the court: "We are spared further comments upon these acts, for the rea. son that they have no application to national banks. Neither of them refers to national banks in terms, and we must presume that, when the legislature used the words any bank,' it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are the creatures of another sovereignty." The case in hand is as follows: Thomas H. Carter, complainant, was the cashier of the First National Bank of Tamaqua. At the same time he was engaged in business as a partner in the firm of Carter, Allen & Co. The firm carried on a general foundry, machinery, and boiler manufacturing business in Tamaqua. It was dissolved by the sale of Lucien H. Allen's interest to Charles F. Allen and Charles F. Lloyd. The complainant claimed the right, as liquidating partner, to the possession of the assets of the firm, for the purpose of closing up the business and paying creditors, and filed this bill to enjoin the appellees from intermeddling with him in doing so. Under ordinary circumstances, the right of complainant to the control of the assets would be clear. It was resisted in this case, however, upon the ground that, under the act of assembly, bank cashiers are prohibited from engaging in business. The sixty-fourth section of the Penal Code of 1860 (P. L. 399) provides: "If any cashier of any bank in this commonwealth shall engage, directly or indirectly, in the purchase or sale of stock, or in any other profession, occupation, or calling, other than that of his duty as cashier, he shall be guilty of a misdemeanor, and, being thereof convicted, shall be sentenced to pay a fine not exceeding $500." The act of congress regulating national banks contains no clause punishing cashiers for engaging in other business, nor does it contain any prohibition of the same. The distinction between Torrey's Case and the one now before us is this: In the former the offense of embezzlement was punishable under an act of congress, while in the latter there has not been any legislation by congress making it an offense for the cashier of a national bank to engage in business.

It was conceded by the appellees that, had congress legislated upon this subject, such legislation would have superseded our state law, so far as national banks are concerned; but that in the absence of such legislation our state law took effect, and made it an offense for the cashier of a national bank to engage in any occupation or business outside of his official duties. We are of opinion that the distinction referred to is a distinction without a difference. Torrey's Case was decided upon the broad ground that our statutes in regard to embezzling cashiers did not apply to cashiers of national banks, and was not intended to. The fact that such persons were punishable under the legislation of congress was referred to argumentatively as an additional reason why an indictment would not lie under our state law. We held then, and we hold now, to the broader position that our statutes have no application. The national banks, as was observed in Torrey's Case, are the creatures of another soverignty. The national banking act and its supplements create a complete system for the government of those institutions. Conceding the power of congress to create this system, I am unable to see how it can be regulated or interfered with by state legislation. The act of 1860, if applied to national banks, imposes a disqualification upon cashiers of such institutions where none has been imposed by act of congress. If the state may impose one qualification upon the cashiers, why not another? If upon the cashier, why not upon the president or other officer? Nay, further, suppose the legislature should declare that no person should be a bank director unless he has arrived at 50 years of age, and should be the owner of 100 shares of stock,

could we apply such an act to national banks? If so, such institutions would have a precarious existence. They would be liable to be interfered with at every step, and it might not be long before the whole national banking system would have to be thrown aside as so much worthless lumber.

The decree is affirmed, and the appeal dismissed, at the costs of the appellants.

Appeal of BARRETT.

(Supreme Court of Pennsylvania. March 12, 1888.)

APPEAL INTERLOCUTORY ORDER-DISSOLUTION OF PRELIMINARY INJUNCTION.
Under the rules of practice in the Pennsylvania supreme court an order of the
court below, dissolving a preliminary injunction, will not be reviewed on appeal.
Appeal from court of common pleas, Schuylkill county.

The complainant, Simmons H. Barrett, filed his bill in equity, asking for a temporary injunction restraining the defendants, Oliver Ditson and Henry L. Williams, from extending their mining operations further towards the boundary line between complainant's and defendant's mines, alleging that, unless so restrained, great and irreparable injury would result to complainant, for which he would have no adequate remedy at law. On the hearing of the motion to continue the temporary injunction, which had been granted, the injunction was dissolved, and plaintiff appeals.

S. H. Kaercher and James Ryon, for complainant. Edmund D. Smith, Mason Weidman, and John W. Ryon, for defendants.

PAXSON, J. This was an appeal from the refusal of the court below to continue a special injunction. It has been our practice for several years not to discuss appeals from interlocutory orders or decrees. If any case could tempt us to depart from this rule it is the present one. It involves an important and interesting question. We will not made it an exception, however, as time and experience have fully vindicated the wisdom of our practice. It will be time enough to discuss the question involved when the case comes here upon appeal from a final decree, and we have all the facts before In the mean time we see no sufficient reason to interfere with the action of the court below.

us.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

In re STREEPER'S ESTATE.

(Supreme Court of Pennsylvania. March 12, 1888.) INSANITY-LIABILITY OF ESTATE OF LUNATIC-FEES OF EXPERTS IN A CRIMINAL CASE. Medical experts, who have been called upon in habeas corpus proceedings, in a criminal case, to make an examination, and report as to the mental condition of relator, cannot have their claim for such services allowed against the estate of the relator, in subsequent proceedings de lunatico inquirendo, at which claimants were not present, and in which relator was adjudged a lunatic.

Certiorari to court of common pleas, Montgomery county; AARON S. SWARTZ, Judge.

This is an application for an order on the committee in lunacy of the estate of Charles Streeper to pay $125 for professional services of Drs. A. W. Biddle and Charles K. Mills. Charles Streeper was charged with assault and battery, and committed to the Montgomery county jail. He was violent, abusive, and threatened his family with bodily harm. Bail was refused on the ground of his violence and alleged insanity. A writ of habeas corpus was taken out, and an effort made to obtain his release. Counsel for the relator attempted to show the sanity of the prisoner, and at relator's suggestion employed Dr. A. W. Biddle to make an examination of his mental condition.