of the plaintiff for $824, an exception being sealed for the plaintiff on the point reserved in reference to the interest." W. Trickett and W. F. Sadler, for appellant. John Hays and H. S. Stuart, for appelles. MCCOLLUM, J. There was no agreement between the husband and wife that he should pay to her or her trustee interest on the mortgage. The jury found that he actually paid interest on it to April 1, 1877; but this finding was based on an inference from the testimony in regard to the receipts given by her, and her declarations to the effect that she used her interest money to buy clothes for the family. The finding, however, was flatly opposed to the direct and positive testimony of the husband, his wife, and her trustee. The receipts did not actually represent payments of interest on the mortgage. They were given for the purpose of protecting the trustee and strengthening the husband's credit. The declarations of the wife concerning her interest money, and the investment of it in clothing for the family, were seemingly, but not absolutely, inconsistent with her testimony. They were reconcilable with the uncontradicted testimony of her husband that he furnished her the money with which the clothing for the family was purchased. Possibly she may have referred to the money thus provided as her interest money, but she emphatically denied that she ever made to any person a declaration or statement of this nature. Assuming that the declarations were made as claimed, there was no necessary sequence from them which discredited the testimony of the husband and wife in relation to the payment of interest money. On the contrary, the declarations, considered in connection with this testimony, tended to show that the husband always supplied his wife with the money needed for the purchase of clothing for herself and family, and that she regarded the same as in lieu or satisfaction of interest on the mortgage. The husband distinctly testified that he had never given her money "in the way of interest," and there is nothing in the evidence which shows that she or her trustee ever demanded or requested payment of it prior to 1891. In corroboration of the view that no interest was paid, we have the wife's admission that she never intended to push her husband for it, and undisputed evidence that the income from the farm incumbered by the mortgage was devoted to the maintenance of the mortgagor and his family. The fair inference from all the testimony is that the entire income derived from the labor and property of the husband was required for their support, and that the farm incumbered as aforesaid was all the property he had. Under the circumstances, and the well-settled principles applicable to them, the conclusion of the learned court below must be sustained. It is the only conclusion authorized by the testimony and consistent with justice. It is in accord with, and it gives effect to, the obvious intention and understanding of the parties prior to 1891, when the farm was sold for the husband's debts. From that time the court below properly charged the purchaser with interest on the mortgage for the benefit of the mortgagor's wife. The testimony referred to, and the decisions in the following cases, furnish a complete vindication of the judgment: McGlinsey's Appeal, 14 Serg. & R. 64; Bachman v. Killinger, 55 Pa. St. 414; Hamill's Appeal, 88 Pa. St. 366; Powell's Appeal, 98 Pa. St. 403; Hauer's Estate, 140 Pa. St. 420, 21 Atl. 445; Wormley's Estate, 137 Pa. St. 111, 20 Atl. 621; Kittel's Estate, 156 Pa. St. 454, 26 Atl. 1116; Moore v. Moore, 165 Pa. St. 464, 30 Atl. 932. Judgment affirmed. BOROUGH OF MT. JOY v. LANCASTER, E. & M. TURNPIKE CO. (Supreme Court of Pennsylvania. Oct. 11, 1897.) STATUTES-TITLE OF ACT. The title of Act April 24, 1871 (P. L. 1096), "An act entitled, 'A supplement to an act erecting the villages of * ** into a borough to be called the borough of M.,' passed the 10th day of February, 1851," gives no notice of, and is insufficient to support, provisions in the act imposing burdens on a company having a turnpike extending through the borough, no reference to which was made in the original act. Appeal from court of common pleas, Lancaster county. Action by the borough of Mt. Joy against the Lancaster, Elizabethtown & Middletown Turnpike Company. Judgment for plaintiff. Defendant appeals. Reversed. George Nauman, A. F. Hostetter, and Edw. P. Brinton, for appellant. Brown & Hensel, for appellee. STERRETT, C. J. This action of assumpsit, to recover the cost of repairing defendant company's turnpike within the limits of plaintiff borough, is grounded solely on the act of April 24, 1871 (P. L. 1096), the constitutionality of which is assailed by the defendant. If it is successful in that contention, which is its main ground of defense, this action fails, and other questions raised by the record become unimportant. The defendant company, incorporated by the act of March 5. 1804 (P. L. 131), owns and operates a turnpike road extending westerly from Lancaster, through Elizabethtown, to Middletown,-a distance of over 20 miles. That act of incorporation, after providing, among other things, for the location and construction of the turnpike between the points designated, contains elaborate provisions, involving the forfeiture of tolls and the imposition of fines and penalties, designed to compel the company to keep its road in good repair. By the act of February 10, 1851 (P. L. 44), the plaintiff borough was incorporated out of territory extending along both sides of the defendant turnpike within the limits of the borough. By the act of March 24, 1852 (P. L. 178), the "In are germane to the original, the true rule is that the subject of the supplement is covered by a title which contains a specific reference to the original by its title, and declares it to be a supplement thereto." In the supplemental act of 1871, under consideration, the title of the original act is quoted verbatim; but this title, as well as the body of the original act, will be searched in vain for any reference to the rights or duties of the defendant corporation, or any intimation that they are to be affected in the slightest degree. The supplemental act does in fact impose serious burdens upon the defendant corporation which did not theretofore exist. Not the least of these is the provision as to evidence above quoted. It also provides a new mode of collecting the cost of repairs. While the act itself provides for notice to the defendant corporation before the borough shall undertake repairs (and the same would be required of any ordinance which might affect the rights of the property owners), the legislature undertook to pass the act, seriously affecting the rights of defendant corporation, without notice or opportunity to be heard. This the constitution does not permit. This conclusion is warranted not only by the reason and application of the rule above cited, but also by the authority of several carefully considered cases. In Ridge Ave. Pass. Ry. Co. v. Philadelphia City, 124 Pa. St. 219, 16 Atl. 741, the title of the act under consideration was, "An act relating to the Ridge Avenue Passenger Railway Company." After providing for the use and maintenance of the lines of railway as they were then laid, constructed, and used, that act, by its repealing clause, in effect, relieved the company from its original charter obligations to repair and repave the streets occupied by it in the city of Philadelphia. In an opinion by the then learned president of common pleas No. 2 of Philadelphia, which was adopted by this court, it is said: "The effect was to give the bill a double aspect,-on one side relating to the railway company, and releasing them, and on the other to the city of Philadelphia, and not only depriving her of the needful control provided for when the company was originally chartered, but of the right to require the company to keep the streets in order. Can such an act be said to have only one subject, clearly expressed in the title? Had it been entitled 'An act relating to the Ridge Avenue Railway Company and the city of Philadelphia,' it might justly have been said to have a single, clearly-defined subject, namely, the relations between the two specifically defined bodies; and had the people of Philadelphia and their representatives at Harrisburg failed to inquire what these relations were, and how they were affected by the repealing clause, it might have been just to regard them as in default, although the notice, even then, would have been scant, in rendering it necessary to ex The fundamental question is whether the act of 1871 is a valid statute, authorizing a recovery in this case. Its title is, "An act entitled, ‘A supplement to an act erecting the villages of Mount Joy and Richland and their vicinity, in the county of Lancaster, into a borough to be called the borough of Mount Joy,' passed the tenth day of February one thousand eight hundred and fifty-one." As was said by this court in Re Phoenixville Road, 109 Pa. St. 44: "While it may be difficult to formulate a rule by which to determine the extent to which the title of a bill must specialize its objects, it may be safely assumed that the title must not only embrace the subject of proposed legislation, but also express the same so clearly and fully as to give notice of the legislative purpose to those who may be specially interested therein. Unless it does this, it is useless." The decisions relating to the titles of supplemental legislation do not depart from the foregoing rule. They can be sustained only on the ground that they give notice of the legislative purpose, to those specially interested, by reference to the original act. Accordingly, in Re Pottstown Borough, 117 Pa. St. 538, 12 Atl. 573, Mr. Justice Clark said: "In the case of a supplement, where the subject of the original act is sufficiently expressed in its title, and where the provisions of the supplement | amine the charter of the railway company in In order to ascertain the truth. But, as the matter actually stood, there was nothing to put them on inquiry, or suggest the idea that a bill denoting an intention simply to regulate the railway bore hardly on the city." Philadelphia v. Ridge Ave. Ry. Co., 142 Pa. St. 484, 21 Atl. 982, the same act was again considered, and it was held that the title gave no notice of an intention expressed in the act to reduce the tax on dividends of the company payable to the city; and as to such tax the act was held unconstitutional. In Re Phoenixville Road, supra, an act entitled "An act relating to boroughs in Chester county," repealing certain provisions of a general act respecting the proceedings for laying out and opening roads within the boroughs of Chester county, the effect of which was to relieve the property owners in the boroughs, and to shift the burden upon the county, was held to be unconstitutional because the title failed to give notice of the legislative purpose, so far as the county was concerned. On principle, as well as authority, we think the act in question is clearly unconstitutional, and no action can be maintained thereunder. this view, as already observed, the subordinate questions require no further notice. It follows that the judgment cannot be sustained. Judgment reversed. THOMAS v. NEW YORK, C. & ST. L. R. CO. (Supreme Court of Pennsylvania. Oct. 11, 1897.) RAILROADS-FIRES-EVIDENCE. 1. Evidence that defendant's engine set eleven other fires at about the same time of day, within a distance of three miles, some of the sparks therefrom being thrown from three to four rods. beyond the right of way, and that an engine provided with an improved spark arrester and properly run will not set fire upon land outside the right of way, warranted submitting the question of defendant's negligence to the jury, notwithstanding the testimony of an employé that he had inspected the arrester the day of the fire, and found it all right. 2. It was competent to show that the engine set other fires in the neighborhood on the same trip. Appeal from court of common pleas, Erie county. Action by Adoniram Judson Thomas against the New York, Chicago & St. Louis Railroad Company to recover for damages from fire negligently set by defendant's engine. From a judgment for plaintiff, defendant appeals. Affirmed. S. A. Davenport and J. M. Sherwin, for appellant. Theo. A. Lamb and J. C. Thomas, for appellee. MCCOLLUM, J. The plaintiff was the owner of a farm in Springfield township, Erie county, consisting of about 60 acres of improved land and about 80 acres of timber land. The defendant located and constructed its road across the improved land, and from 20 to 40 rods from the timber. On the 12th of Oc tober, 1893, a fire was set, in a field of the farm near the railroad, by a spark or sparks from the defendant's locomotive. The fire rapidly spread over the field and into the timber, destroying a considerable portion of the latter, and otherwise damaging the farm. For the damage done to the farm by fire this suit was brought, and it resulted, on the trial of it in the court below, in a verdict for the plaintiff. It is now before us on appeal from the judgment entered in it. While it was not denied on the argument at bar, or in the paper book, that the fire was set as above stated, it was strenuously contended that it was not caused or contributed to by any act or omission of the defendant. In support of this contention, evidence was introduced to show that engine 73, from which the sparks were thrown, was provided with an approved spark arrester, which was in good condition on the day the fire was set. The witnesses who testified to this effect were Lilly, whose duty it was to inspect the spark arresters in the smokestacks of the locomotives, and Shurtz, who on the day of the fire was fireman on 73. Lilly testified that he inspected the spark arrester in 73 on the day of and the day after the fire, and found it all right. His testimony, however, was not based on his recollection of the inspection, but on the entries in the book in which he noted them, which entries were, "73 ditto." Shurtz testified that he did not examine the spark arrester on 73 on the day of the fire, but that he saw nothing which led him to think it was defective. This was the nature and scope of the testimony presented by the defendant as a sufficient answer to the evidence introduced by the plaintiff to show that the fire was caused by the negligence of the former. It was shown by the evidence submitted by the plaintiff, and bearing on the question of negligence, that the fire was set, in his field adjoining the defendant's right of way, by sparks from engine 73; that the same engine, on the same day, and within a distance of three miles, set eleven other fires on farms adjoining or crossed by the railroad; and that some of these fires were set by sparks thrown from three to four rods beyond the right of way. All of these fires were set about 1 o'clock in the afternoon. Alvin Van Gorder testified that he was about 80 rods from the railroad track when the second freight train passed; that the engine (73) hauling it appeared to be laboring hard, and was pouring out smoke and fire; that he saw sparks flying from it, but could not tell, from where he stood, how large they were. He also testified that very soon after the train went east he saw three fires on lands adjoining the railroad,-two on Allen's land and one on Shear's land. He was then standing about three-quarters of a mile from the west line of the plaintiff's farm. Loren Whitney testified that he was about a third of a mile from the railroad when the second freight passed, and that he saw black smoke and a blaze issuing from the engine, and soon after it passed he saw four fires on lands adjacent to the road, one of them being on the land of the plaintiff. It is proper to state in this connection that the testimony of the defendant's engineers clearly supports the view that an engine provided with an approved spark arrester and properly run will not set fires upon lands outside of the right of way, as the evidence we have referred to shows that 73 did. We are clearly satisfied that, upon all the evidence in the case, the question of the defendant's negligence was for the jury. Van Steuben v. Railroad, 178 Pa. St. 367, 35 Atl. 992, and cases cited therein. It remains to inquire whether the court below erred in its rulings upon offers of evidence, or in its instructions to the jury. The first and second assignments relate to the admission of evidence of the fires set by engine 73 on the same day the fire was set on the land of the plaintiff. The question raised by the assignments does not require discussion. It has been considered and passed upon in numerous decisions of this court. The rulings to which the assignments relate are in accord with those decisions. It is sufficient to refer to the following cases for the law on this point: Huyett v. Railroad Co., 23 Pa. St. 373; Railroad Co. v. Schultz, 93 Pa. St. 341; and Henderson v. Railroad Co., 144 Pa. St. 461, 22 Atl. 851. The third assignment is without merit, because the objection to the question embraced in it was practically withdrawn by the plaintiff, and the defendant was allowed to introduce all the evidence on the subject to which the question referred that it desired to. There was no evidence in the case of any contributory negligence on the part of the plaintiff, and the court was clearly right in saying so in answer to the defendant's sixth point. See Railroad Co. v. Hendrickson, 80 Pa. St. 182, and Railroad Co. v. Schultz, supra. We have carefully examined ard considered the charge, and are satisfied that it furnishes no ground for reversing the judgment. The assignments are not sustained. Judgment affirmed. KUNSELMAN et ux. v. STINE. (Supreme Court of Pennsylvania. Oct. 11, 1897.) DOWER-EFFECT OF PARTITION-EXECUTIONSALES-VALIDITY. 1. The interest of the widow of an intestate in the lands of her deceased husband, after the sale of the lands in partition, remains the same as before the sale,-that of a tenant for life. 2. Act Oct. 13, 1840, regulates the manner of seizure and sale of life estates. Section 6 authorizes the court, on the application of a lien creditor, to appoint a sequestrator with power to take the "rents, issues, or profits" of the life estate, and apply them on the liens. Act Jan. 24, 1849, provides that, where no lien creditor applies for appointment of a sequestrator, the sale of "life estates yielding rents, issues, and profits" may be made upon a writ of venditioni exponas after advertisement. Section 4 declares that no venditioni exponas shall issue for the sale by the sheriff of a life estate "unless by direction of the proper court; and on the application of any lien creditor for a writ of venditioni exponas the tenant for life shall have at least ten days' notice of application for such writ." Held, that a sale of a life estate yielding rents, etc., under an execution, without an order of the court allowing the writ, made under the act of 1849, and without notice to defendant, is void. Error from court of common pleas, Northumberland county. Action by D. C. Kunselman and Lavina Kunselman, his wife, for the use of Lavina Kunselman, against W. Nelson Stine. There was a judgment for defendant, and plaintiffs bring error. Reversed. S. B. Boyer, for plaintiffs in error. C. B. Witmer, N. Heblich, and W. A. Marr, for defendant in error. WILLIAMS, J. The important question in this case is not free from difficulty. It involves the nature of the interest of the widow of an intestate in the lands of the deceased husband after a sale of the lands in partition. The general rules applicable to an estate in dower are well settled. Dower consummate is a life estate. After it has been assigned by metes and bounds, the title and the possession are in the widow, and she has the same absolute ownership and control of her estate as though her title had accrued by deed or will. She may alien, incumber, or otherwise dispose of it, and it may be seized and sold for her debts. Is the nature of her estate or interest changed by proceedings in partition under our statutes? In this case the decedent was the owner of a valuable farm. Soon after his death, proceedings were instituted by his heirs for making partition. The appraisers appointed by the court made return that the farm could not be divided without injury, and fixed its value as a whole. The heirs thereupon declined to take it at the valuation, and requested that an order be made for its sale. The widow joined in this request. The court then made the order of sale usual in such cases, and directed that one-third of the price at which the land should be sold should remain in the hands of the purchaser until the death of the widow, and be then paid to the heirs at law of the former owner, and that meantime the interest on said sum at the rate of 6 per cent. should be paid to the widow during her life. After this sale was made, a creditor of the widow obtained judgment against her for about $400. Assuming that her interest in the land was a life estate after as well as before the sale in partition, the creditor levied upon it and sold, as he would have levied and sold an estate in fee simple, without any application to the court, and without a special writ, and became himself the purchaser for the sum of $25. Did this sale vest in the purchaser a title to the interest or estate of the widow? That must depend upon what her interest or estate was, and whether it was sold in the manner required by law. It would seem to be quite clear, under our cases, that the interest of the widow was that of a ten ant for life. It was unquestionably a life estate before the proceedings in partition were instituted. The object of this partition was not to destroy or devest her estate, but to make division among the heirs at law subject to her dower. A decree making partition by purparts among the heirs would not have prevented her from asking an assignment of her dower by metes and bounds, nor did the decree of sale qualify her estate except as to the manner of its enjoyment. She could not require the purchaser to assign her dower upon the land after the sale, for the decree had assigned her dower by a different method of admeasurement, viz. by valuing her estate, and requiring her to accept 6 per cent. upon such value in lieu of actual possession of the surface. The return of sale was, therefore, in effect, of a sale subject to her estate in dower, to be enjoyed by her in the manner provided by the statute and the order of sale, instead of by assignment by metes and bounds on the surface. Mann's Appeal, 50 Pa. St. 375. It is not converted into a lien by proceedings in partition. Zeigler's Appeal, 35 Pa. St. 173; Schall's Appeal, 40 Pa. St. 170. But such proceedings are, in legal effect, an assignment of dower, and her estate after such proceedings continues to be a life estate. Gourley v. Kinley, 66 Pa. St. 270. Her interest is changed by a sale in partition, not in its quantity or character, but simply in its method of use and enjoyment. The other question remains to be considered, viz. was the sale made in conformity with the laws of this state? This must depend upon the construction of the act of October 13, 1840, by which the manner of the seizure and sale of life estates in execution is regulated. Section 6 of that act authorizes the court, upon the application of a lien creditor, to appoint a sequestrator, with power to take the "rents, issues, or profits" of the life estate, and apply them upon the liens against it, or, if the life tenant is in the actual possession of the land, to enter upon such possession, and "rent or sell such lands or tenements for such term during the life of the persons upon whom such estate shall depend as shall be sufficient to satisfy all the liens against the same, together with all charges for taxes, repairs, and expenses," and make application of the same to the payment of the liens under the direction of the court, and according to their priority as liens upon the life estate. The sequestrator is entitled to the possession of the life tenant. If, before the entry of the liens, a valid lease had been made to one who was in actual possession of the land and paying rent therefor, we do not understand that the sequestrator would have any legal right to dispossess, or enter upon, such tenant. He could, however, seize and apply the rents paid by him. He would, as to such prior valid lease, be clothed with the rights and powers of the life tenant, and authorized to collect and apply all the "rents, issues, or profits" until the purposes of his appointment were fully met. But what if no lien creditor applied for the appointment of a sequestrator? Then the execution creditor might proceed under the provisions of the third section of the act of January 24, 1849, which authorized the sale of "life estates yielding rents, issues, or profits" in the same manner as estates of inheritance may be sold upon execution process, viz. upon a writ of venditioni exponas after advertisement. The defendant was, however, permitted to have an appraisement made by a sheriff's inquest of the yearly value of the land, and to elect to retain possession, and pay the rental fixed by the inquest in semiannual payments to his creditor. A proviso to the fourth section of this act expressly declared that no venditioni exponas should issue for the sale by the sheriff of the life estate "unless by the direction of the proper court; and on the application of any lien creditor for a writ of venditioni exponas the tenant for life shall have at least ten days' notice of the application for such writ." Thus it will be seen that the right to sell a life estate in the same manner as estates of inheritance are sold, upon a writ of venditioni exponas, is subject to two conditions: First, the right of the defendant to an appraisement of its annual value by an inquest, and to elect to retain possession at the rental fixed; second, the consent or order of the proper court, made after 10 days' notice to the defendant that such writ is asked for. These conditions, like the provision for the appointment of a sequestrator, are really in aid of the tenant for life, whose estate is of such uncertain duration as to make it of little value to ordinary purchasers, and render its sacrifice at a public sale practically certain. Not only would its sale be ordinarily disastrous to the life tenant, but equally so to the lien creditor, since the proceeds of such sale would ordinarily be much less than could be realized by sequestration, or by an appraisement and election to pay the rental by the defendant. But it is not necessary to rest our ruling on general principles alone, since the construction of the act of 1819 seems to have been settled in several cases. In Com. v. Allen, 30 Pa. St. 49, it was held that a life estate cannot be sold upon a fi. fa., but must be sold, as provided by the act, upon a venditioni exponas. The further point that no writ of venditioni exponas could issue without the order of the proper court, made after 10 days' notice to the defendant, was distinctly ruled as early as 1858 in Kintz v. Long, 30 Pa. St. 501, and it was also sail a sheriff's sale of a life estate "under a venditioni exponas issued without such notice is void, and confers no title upon the purchaser." The invalidity of such a sale was again distinctly ruled in Snyder v. Christ, 39 Pa. St. 499, in which our late Brother Strong said: "We think, therefore, the court should have affirmed unqualifiedly the fifth point proposed by the defendants below, which was that, if Snyder's interest in the land was a life estate only, the sale did not devest the title unless the venditioni ex |