two weeks after she left, her husband sent her a kind and conciliatory letter, urging her to return, and promising to treat her kindly, and assuring her that she would be made welcome if she returned. To this letter she made no reply and paid no attention. It was testified that at a hearing before Judge Porter, upon an application for support, her husband, at the instance of the judge, made another effort at reconciliation, but it was in vain. She refused even to speak to him, and turned her back to him. It was also testified that the other members of her husband's family made efforts to bring about a reconciliation, both before and after the hearing, but she refused to negotiate with them. Another witness, a friend of hers, to whom the libelant spoke, expressing a desire to speak with his wife, repeated this wish to the respondent, who replied: "No, I will Iever speak to him. If he speaks to me on the street, I will have him arrested." This occurred about a year after separation. The libelant testified to repeated efforts he had made to have her come back, and to similar efforts made by members of his family, but said she always refused. He said he was always willing to take her back, and desired her to come, but that she would not do so, saying she intended staying with her mother. Another witness, Adams, testified that he went with the libelant to see his wife, and they did see her, and libelant asked her to come back, and she refused to do so. This was in the spring of 1896. The witness further said the libelant was urgent to have her come back, and that he knew he was acting in good faith in making the request. Against all this testimony there is not a particle of opposing evidence. The husband's efforts to induce his wife to return and live with him commenced a week or two after she left him, and continued persistently and repeatedly until the filing of the present libel. It was testified to by a number of witnesses that they lived pleasantly together until the time the respondent left her husband, and none knew of any reason for her leaving him. It is impossible to regard such conduct on the part of the respondent as other than willful and malicious desertion, persisted in for considerably more than two years, without any cause that the law can recognize. A mere quarrel at the time of the desertion is no justification. It is neither alleged nor proved that any personal violence was inflicted by the husband, nor any abusive language used. We consider it fully proved that the respondent intended to desert her husband when she left their home, and that she persisted in that purpose continuously from that time forward. That it was malicious and willful is a necessary conclusion from all the circumstances. We know of no cause but the quarrel; and that is no cause at all, in any legal sense. We are therefore of opinion that the decree of divorce from the bonds of matrimony should be granted. Bauder's Appeal, 115 Pa. St. 480, 10 Atl. 41, we held that a wife who refuses the repeated

requests of her husband, for the period of two years, to return to him, and live and cohabit with him, is guilty of such desertion as will entitle the husband to a divorce, even though during this time the husband has paid her a fixed sum per week for her support, under an order of the court of quarter sessions of the peace, made in a proceeding for desertion against him by his wife. In Van Dyke v. Van Dyke, 135 Pa. St. 459, 19 Atl. 1061, we held that a desertion which is without consent and without sufficient legal cause is presumed to be willful and malicious, and, if persisted in for two years or more, it will entitle the injured party to a decree of divorce. The decree is reversed, at the cost of the appellee, and the record is remitted, with instructions to enter a decree of divorce for the libelant.

STROUP v. RAYMOND.
Appeal of CROW.

(Supreme Court of Pennsylvania. Nov. 8, 1897.)

EXECUTION SALE

INADEQUATE PRICE-MISTAKE.

While gross inadequacy of price does not of itself authorize the setting aside of execution sale, sale for $400 of property worth $2,500 may be set aside where all parties supposed it was subject to a mortgage of $2,000, which was in fact discharged.

Appeal from court of common pleas, Dauphin county.

Sheriff's sale was made under judgment of Anna H. Stroup against Charles N. Raymond. Rule to show cause why it should not be set aside was made absolute, and the sale was set aside. Wilmer Crow, the purchaser, appeals. Quashed.

Benj. L. Forster and John E. Snyder, for appellant. Meade D. Detweiler, for Jacob Overdeer.

DEAN, J. Charles N. Raymond borrowed from Anna H. Stroup $2,000, and, to secure the loan, executed to her a mortgage in that sum on a lot of ground and dwelling house in the borough of Middletown. The value of the property was not less than $2,500. A judgment bond accompanied the mortgage. Default having been made by Raymond in payment of the debt and interest, judgment was entered on the bond, execution issued, and the mortgaged property was seized and sold by the sheriff on December 30, 1896, to Wilmer Crow, this appellant, at his bid of $400. There were other bidders, but it is found as a fact by the court below, from the testimony, that all parties interested, which would include plaintiff, defendant, and purchaser, believed the sale was made subject to the mortgage. It appears clearly from the testimony that Crow, the purchaser, until some time after the sale, assumed the property had cost him over $2,400. It was then discovered that, as the sale had been made on the bond the mortgage had been given to

secure, the lot was discharged from the lien of the debt. This rule was then taken, at instance of an intending bidder and plaintiff and defendant, before the sheriff's deed was acknowledged, to set aside the sale. A bond with ample security was tendered, to be filed in court, stipulating that on a resale a bid sufficient to cover mortgage debt, interest, and costs would be made. After testimony taken, the court set aside the sale. The purchaser, Crow, appealed to this court; and counsel for plaintiff and defendant, in the judgment, now move to quash the appeal, assigning several reasons, only one of which we notice, viz.: "No appeal lies from the discretionary exercise of a power resting with the common pleas."

It is settled that the setting aside or refusing to set aside a sheriff's sale is in the sound discretion of the court below: and, unless there be a manifest and gross abuse of that discretion, this court will not disturb the de

All our cases touching the question are so fully cited in the opinion of the superior court in Laird's Appeal, 2 Super. Ct. Rep. 300, that we need not repeat them; and it is held in the same cases that this court may either affirm the decree or quash the appeal. But it may be argued that there was a manifest abuse of discretion here, because learned judge of the common pleas sets out, as a reason for setting aside the sale, gross inadequacy of price, which the law has settled is not of itself a sufficient reason. If this were the only reason on which the decree rested, the argument of appellant would be sound. Clearly, it is an abuse of discretion when, to reach a decree, the court itself overrides the established law. Substantially the same position was taken by the court below in Young's Appeal (decided in 1831), 2 Pen. & W. 380, as is taken by the court below in the case before us. All the judges concurred in dismissing Young's Appeal, because no appeal was given by the act of 1827. Two of the judges, Ross, J., and Gibson, C. J., wholly dissented from the reasons given by the court below for setting aside the sale. The other three judges declined to express an opinion as to this part of the case, because it had not been argued. But the opinion of Ross, J., concurred in by Gibson, C. J., has ever since been followed by this court as the law, and is conceded by the learned judge of the court below to have been the law so late as Ritter v. Getz, 161 Pa. St. 648, 29 Atl. 112. But he thinks "the time has arrived when the hoary pretense of 'seizing upon other circumstances' might safely be sent to keep company with the many other useless fictions, that have been abandoned in the modern desire for a more straightforward administration of the law, and that the courts should admit that, when the price is grossly inadequate, that of itself is a valid reason for setting aside a sheriff's sale." We do not think this statement meets the reasoning in Young's Appeal, supra. The opinion there states: "The bona

fide purchaser at a sheriff's sale of land, the moment it is knocked off to him, if he complies in all respects with the conditions of sale, instantly acquires a vested right to the property sold. Such a purchaser would be bound by his bargain thus made, although his bid greatly exceeded its value. And if he purchase at a bona fide sale greatly below the value, the vendor would be bound by the sale. Equality, in this case at least, is equity." The opinion then goes on to show that any other rule would necessarily affect sheriffs' sales very injuriously, because buyers would not attempt to purchase at such sales when they could be set aside for mere inadequacy of price. We do not see that lapse of time has changed the rule that equality is equity into the opposite one, that inequality is equity. The same reasons for adhering to all other formal solemn contracts exist where such contracts are regular, and made under no misapprehension as to material facts. We are clearly of the opinion that the rule was founded upon the soundest reason, and should be adhered to. If the decree of the court below had for its foundation only the reason that inadequacy of price was sufficient to set aside the sale, we would reverse it as a palpable abuse of discretion. But it also rests upon a much sounder one. The court states that all parties interested acted on the mistaken belief that the purchase was subject to the mortgage. This was such a mutual mistake as would in most cases relieve parties from the obligation of their contracts. Undoubtedly, courts have, in cases where the purchaser believed he bought the land discharged from the lien of a mortgage, relieved him from the obligation incurred by his bid, if he made prompt application before acknowledgment of deed. And, on the other hand, there is no reason here why this purchaser should get for $400 a property which he thought he was paying more than $2,400 for. This mutual misapprehension, coupled with inadequacy of price, warranted the decree, and therefore there was in fact no abuse of discretion. There being no such abuse apparent from the record or averments of appellant, the appeal is quashed.

DURNING v. HASTINGS. (Supreme Court of Pennsylvania. Nov. 8, 1897.)

HUSBAND AND WIFE-CRIMINAL CONVERSATION— PROOF OF MARRIAGE.

In an action by a husband for seduction of his wife, cohabitation, reputation, and general surroundings, which indicate the reasonable probability of the conclusion that said parties are married, is sufficient to establish that fact.

Appeal from court of common pleas, Allegheny county.

Action by Charles Durning against John Hastings to recover damages for the seduction of plaintiff's wife. From a judgment for plaintiff, defendant appeals. Affirmed.

One of the assignments of error was as follows: "The court erred in charging the jury as follows: "The first question for you to determine is whether or not you believe the plaintiff and the woman who is alleged to be his wife were actually married. I presume upon that subject you have very little, if any, doubt that the Reverend Mr. Lea did marry a woman and a man with the same names, the names borne by the plaintiff and the plaintiff's so-called wife. Those people were recognized in the community as being married. They lived together for years, and had children; and that, perhaps, will be entirely sufficient to satisfy the jury of the marriage. If it required absolute proof of marriage between a man and a woman, it would be a very difficult thing for most of us, particularly very old people, and more particularly people coming from another country, where they were married, to produce evidence that would clearly and unquestionably establish the fact. Therefore cohabitation, reputation, and general surroundings that indicate the reasonable probability of the conclusion that the parties were married are recognized as being sufficient evidence to establish that fact.'"

Levi Bird Duff and L. B. D. Reese, for appellant. John P. Hunter, for appellee.

PER CURIAM. This record contains nothing that would justify us in sustaining either of the specifications of error. The case was ably and correctly tried. It was clearly for the jury on the questions of fact presented by the evidence, and was submitted to them with full and adequate instructions, of which the defendant has no just reason to complain. Judgment affirmed.

COMMONWEALTH ex rel. KELLY et al. v. CITY OF PITTSBURGH et al. (Supreme Court of Pennsylvania. Nov. 8, 1897.)

MUNICIPAL CORPORATIONS-APPROPRIATIONS

VALIDITY.

1. A city ordinance was passed in 1895 appropriating $10,000 out of the revenues for the fiscal year commencing February 1, 1896, for the purpose of the "Provisional Committee of the Lake Erie and Ohio River Ship Canal," a committee appointed by the chamber of commerce of Pittsburgh to determine the practicability of such a canal. An ordinance passed in February, 1896, headed "Appropriations for 1896," contained an item, "Lake Erie Ship Canal, $10,000." No corporation or association of that name existed, and there was no appropriation to the provisional committee by name. Held, that the appropriation was intended for the committee, pursuant to the prior ordinance.

2. An appropriation of a reasonable sum by the city of Pittsburgh for the use of a committee appointed by the chamber of commerce, to determine the practicability of a ship canal between said city and Lake Erie, and whether it would benefit the city, is not within the inhibition of Const. art. 9, § 7, forbidding the legis

lature to authorize a city "to appropriate money or loan its credit to any corporation, association, institution, or individual."

Appeal from court of common pleas, Allegheny county.

Mandamus, on the relation of George A. Kelly and others, a committee of citizens unincorporated, known and styled the "Provisional Committee of the Lake Erie and Ohio River Ship Canal," against the city of Pittsburgh and H. I. Gourley, controller of said city, to compel the latter to issue and approve a warrant. From a decree for plaintiffs, defendants appeal. Affirmed.

The court of common pleas rendered the following opinion (WHITE, J.):

"This case comes before us on an amicable submission, to decide the legal questions involved. The original petition, answer, and demurrer were filed the same day, January 22, 1897. At the hearing, certain facts seenied to be necessary to a proper decision of the case, and the relators were allowed to amend. The amendment, answer thereto, and demurrer were filed at the same time, March 13, 1897, and the case submitted for final disposition. The relators were the 'Provisional Committee of the Lake Erie and Ohio River Ship Canal,' appointed in pursuance of a resolution of the board of directors of the chamber of commerce of the city of Pittsburg, passed 2d July, 1894, for determining the practicability of such a canal, and the benefits and advantages that would accrue from it to the trade and industries of Pittsburg, and, if found such, to secure a corporation of private capital to undertake it, or the national government to undertake it. Pursuant thereto, the committee raised, by voluntary subscriptions, $29,000, which were expended in the employment of engineers, gathering statistics, etc., and were unanimously of opinion that the proposed canal 'was entirely practicable and feasible, and would be of inestimable value to the city of Pittsburg and its citizens, by increasing the trade and commerce of said city.' Finding that the fund voluntarily subscribed was not sufficient to complete their work, and 'to remove all doubts as to the practicability of the project, and to establish clearly its great utility to the commerce, trade, and industries of the city of Pittsburg,' they wished to employ impartial experts to test and examine the work, and to complete the work in the most perfect detail,' and for that purpose appeared before the councils of the city, 'and gave a full explanation and history of their work as done, and stated that the money requested was to be used by the committee, in completing their work in the most perfect and detailed manner,' and the necessity and great utility of such a canal for the people of Pittsburg. Thereupon the councils of the city unanimously passed an ordinance, July 11, 1895, which was duly approved by the mayor, for the appropriation of $10,000 out of the rev

enues of the city for the fiscal year commencing February 1, 1898, 'to be expended solely for the purpose of the provisional committee of the Lake Erie and Ohio River Ship Canal, a public improvement and highway designed to promote the commercial interests of the city. The sum, or so much thereof as shall be required, shall be paid by the controller upon proper vouchers and affidavits presented and made by the chairman of said committee, or the treasurer thereof, and shall be charged to appropriation No. -.' The relators

say that, 'relying upon the faith of said ordinance and appropriation, they subsequently entered into contracts, and expended in carrying out the work contemplated, requiring the sum of $7,500 ($5,000 yet remaining unpaid, $2,500 being advanced by the relators), and that, in addition thereto, some $1,500 will be needed for publishing the reports, etc., making a total of $9,000, which will be necessary to finish the work'; that, on application to H. I. Gourley, the controller, for the certificate for a warrant for the appropriation, he refused. to issue the same, for reasons stated in his letter of June 5, 1896, addressed to the chairman of the committee, in which he says: 'I very reluctantly decline to issue the certificate. *** The conclusion which I am compelled to reach is based on a provision of the state constitution, which I am advised prevents the use of public money for the purpose designed. I can see no way, at the present time, by which the money can be placed in the possession of your committee.' At the argument on the original petition, answer, and demurrer, it was further urged that the relators had not presented vouchers and affidavits, as required by the ordinance of July, and also that all appropriations, under the general ordinances of the city, must be made. at the beginning of the fiscal year, in January or February. It was claimed by the relators that they had or would give the vouchers, etc., and also that in the annual appropriation ordinance of February, 1896, this specific sum of $10,000 was included. The relators were permitted to amend on these points. The amendment filed March 13, 1897, showed a compliance as to the vouchers and affidavits, and also the general appropriation ordinance of February, 1896, containing this item: (47) Lake Erie Ship Canal, $10,000.' The ordinance is headed: 'Appropriations for 1896. The following sums of money are hereby specifically appropriated for the purposes hereinafter set forth.' the answer of the controller to the amendment, he denies that the $10,000 in the ordinance of February, 1896, should be paid to the relators, because it is 'an appropriation made to and for a different and distinct body entirely, namely, the Lake Erie Ship Canal.'

"If the answer raised a question of fact, it would have to be referred to a jury. But I do not understand that the controller raises a question of fact, but a legal question, upon the words of the ordinance. In considering

this question, we must take into consideration all the circumstances. It is not alleged that there is any corporation or association by the name of the 'Lake Erie Ship Canal.' If there is none such, then the appropriation could not have been intended for a nonentity. The appropriation in the ordinance of February, 1896, was manifestly intended to refer to the ordinance of July, 1895. That ordinance did not appropriate the money at that time, for it expressly provided it shall be paid out of the revenues of 1896. The ordinance of February, 1896, was intended to carry out the ordinance of July, 1895. It is for the precise sum, and there is no appropriation to the provisional committee. The object is the same in both ordinances. It was suggested in the argument that possibly the city might have to pay the sum twice. Perhaps that was a good reason for raising the question. But certainly the city is in no danger. There is no body now in existence that can claim this money, as the 'Lake Erie Ship Canal.' No doubt, if the money be paid to the relators under the order of court, the city will be fully protected, especially as no body or person representing the 'Lake Erie Ship Canal' has appeared for more than a year to claim this money. When the controller wrote his letter to the committee, June 5, 1896, doubtless he knew of the appropriation in the ordinance of February; but he did not give that as any reason for refusing to certify a warrant, nor does he refer to it in his answer to the original petition, filed January 22, 1897.

"The other, and perhaps the main, question in the case, is the one raised in the controller's letter to the committee: Had the councils power to make the appropriation? The section of the constitution referred to (article 9, § 7) is in these words: "The general assembly shall not authorize any county, city, borough, township, or incorporated district, to become a stockholder in any company, association or corporation, or to obtain or appropriate money or loan its credit to, any corporation, association, institution or individual.' The principle of this section is not new. It is substantially the same as an amendment to the constitution of 1837, adopted in 1857. It is the same as in the constitution of Ohio. The city of Cincinnati, under an act of the legislature of that state providing that cities of the first class, when a railroad was material to the development of a city, might contract a loan and build a railroad, actually built a railroad entirely outside of the state of Ohio, except the bridge over the Ohio river, which connected it with the city. The supreme court of Ohio gave an interpretation to that section of their constitution. Walker v. City of Cincinnati, 21 Ohio St. 52-54. Our supremecourt, in Wheeler v. Philadelphia, 77 Pa. St. 338, adopted the interpretation of the supreme court of Ohio, as contained in the opinion of Scott, C. J., by this quotation: "The mischief which this section interdicts is