Miller's Estate.

assigned estate; and that where part of the goods had been delivered, and the balance, which had been retained, had been sold by the vendors, who applied the proceeds to the payment of the notes given upon the sale, leaving a balance still due, they were entitled to a dividend on the whole amount of their claim at the date of the assignment. In delivering the opinion, Judge STRONG said: "If the beneficial ownership of property assigned in trust for creditors is not in the creditors for whose benefit the trust was made, it can be nowhere, for clearly it is not in the assignor, nor is it in the trustee; surely it cannot be maintained that when an assignment has been made in trust for creditors, it does not operate as much for the benefit of a creditor who holds a collateral security for the debt due him as for the benefit of the creditor who holds no collateral." These cases have been emphatically indorsed by this court in Hess's Estate, 19 P. F. Smith, 272; Brough's Estate, 21 id. 460; and Graeff's Appeal, 29 id. 146. Brough's Estate, indeed, may be regarded as decisive. Brough being indebted to Hinchman, gave him his own note with indorsers, and the note of Gabley as collateral security. Brough afterward assigned for the benefit of creditors. The notes were not paid at maturity, but afterward payments on account were made by the indorsers. In the distribution of Brough's estate, it was held that Hinchman was entitled to a dividend on the amount due at the date of the assignment, irrespective of the intervening payments.

Upon authority the rights of the appellants would seem clear. They would seem clear also in view of a principle so simple and palpable as to be obvious to the plainest comprehension. If the estates of the two debtors had been adequate to the purpose, the appellants had the right to demand payment of their debt in full. That is, if each estate had been large enough to pay a dividend of fifty per cent, the dividends from both, if apportioned to it, would have satisfied the claim. By the rule which was adopted by the court below, if John Miller's estate had paid fifty per cent, and a dividend of fifty per cent had been subsequently declared in Amos Miller's estate, the appellants would have been confined to a pro rata distribution on the balance remaining due, and one full quarter of their claim would have been left unpaid. Surely a rule that would so divert funds admittedly adequate as to make the satisfaction of an uncontested debt impossible, would be neither sound, nor safe, nor just.

Decree reversed.

It is no ground for quashing an indictment for burglary in breaking into a bank, that two of the grand jurors by whom it was found were stockholders of the bank.

Defendant entered a house without breaking for the purpose of committing & felony, but broke out in making his escape. Held, not burglary at common law, and that the statute of Anne making it burglary was not in force in Pennsylvania.*

IND

NDICTMENT for burglary. The facts were in substance, that the defendants, intending to gain an entry into a bank building to rob the bank, called in the evening at the cashier's house, which was in the rear of the bank, and asked for the cashier, saying that they wished to transact some private business with him. The cashier was not then at home, and they went away. They called again twenty minutes later, and were then shown into the cashier's office, without saying any thing as to the pretended object of their visit. After a short interview with the cashier they assaulted him, seized certain property of the bank, opened the door and departed with it. At the trial the defendants moved to quash the indictment for the reason that two members of the grand jury were directors and stockholders of the National Bank of Chambersburg, upon whose premises the alleged offense was committed. motion was also overruled.

A number of errors were assigned, but only two are of importance.

The jury rendered a verdict of guilty.

J. McD. Sharpe and Duncan & McGowan, for plaintiff in error. O. C. Bowers and Kennedy & Stewart, for defendant in error.

PAXSON, J. [After deciding minor points.] What has been said applies as well to the motion to quash the indictment as to the challenge to the array. In support of the former motion, there was, however, the additional reason that two of the grand

*See contra, State v. Ward, 21 Am. Rep. 665; S. C., 43 Conn. 489.

Rolland v. Commonwealth.

jurors were stockholders in the National Bank of Chambersburg. This was no ground to quash the indictment. It might have been a ground of challenge as to the particular jurors. It is well settled that a grand juror may be challenged for cause. rent of the English authorities. It was allowed in the trial of Col. Burr, and in this State in an Oyer and Terminer case tried before TILGHMAN, C. J., and BRECKINRIDGE, J., in 1814, 2 Browne, 323.

This is the curin this country

The mere unlatching

The answer to the fourth point was error. or breaking of a door in an attempt to escape is not burglary in this State. We do not think it was ever so at common law. It is true it was at one time asserted to be so by Lord BACON and other eminent English lawyers, but it was denied by authority of equal weight; notably by Sir MATHEW HALE, by Lord HOLT and by TREVOR, C. J., in Clark's Case, 2 East's P. C., ch. 15; in 1 Hale, 554. where it is said: "If a man enter in the night-time by the doors open, with the intent to steal, and is pursued, whereby he opens another door to make his escape, this, I think, is not burglary, for fregit et exivit non fregit et intravit." And see Black. Com., vol. 4, p. 223. This difference of opinion among eminent jurists in England led to the passage of the statute of 12 Anne, which, after referring to the doubt on the subject, provides that a breaking out of a dwelling-house by a burglar in the night-time, in an attempt to escape, was a sufficient breaking to sustain a conviction. This statute was subsequently repealed by the statute of 7 and 8 Geo. 4, ch. 27, and re-enacted by 7 and 8 Geo. 4, ch. 29. The passage of the act of 12 Anne is strong evidence that it was not the common law. No such statute was ever enacted in Pennsylvania, and I am not aware of any decision recognizing such a rule here. In the fifth report of the English commissioners on criminal law, we find the following remarks on burglary, which are so forcible, and bear so directly upon this point, as to justify their admission here: "By the statute of 12 Anne, ch. 1, § 7 (subsequently repealed and reenacted), the crime of burglary was extended to the case of an offender who, having committed a felony in a dwelling-house, or having entered therein with intent to commit a felony, afterward broke out of such dwelling-house in the night-time. This extension does not, we think, rest upon just principles. After a felony has been committed within the dwelling-house, the offense is not in

Seely v. Pittsburgh.

reality aggravated by lifting the latch of a door, or the sash of a window, in the night-time, in order to enable the offender to escape. A breaking out, indeed, may be an innocent act, as it may be committed by one desirous of retiring from the further prosecution of a crime, and the extension of the law of burglary to such a case is not warranted by the principles upon which the law is founded, inasmuch as a circumstance not essential to the guilt of the offender, or the mischief of the act, is made deeply essential to the crime. It is ineffectual, even with a view to the object proposed; the pretext for the conviction fails in the absence of a breaking out, which is a casual and uncertain circumstance."

Judgment reversed and set aside.

SEELEY V. PITTSBURGH.

(82 Penn. St. 360.)

Assessments for local improvements — rule as to constitutional law.

A statute provided that the cost of improving streets and roads should be assessed upon the abutting property in proportion to the frontage. Held, unconstitutional as applied to rural or suburban property.

SCIRE

CIRE FACIAS sur municipal claim brought by the city of Pittsburgh against Seely, to recover an assessment. Penn avenue,

in said city, was paved and improved in pursuance to a statute authorizing such improvements to be made, and the expense thereof to be assessed upon the abutting property in proportion to its frontage. The defendant Seely was owner of land abutting on said avenue, which was assessed for the improvement.

The opinion states other facts.

On a case stated for the opinion of the court, the court entered judgment for the plaintiff, and the defendant took writ of error.

J. W. Kirker & M. A. Woodward, for plaintiff in error.

George Shiras, Jr., & Thomas S. Bigelow, for defendant in error.

AGNEW, C. J. It is fortunate for the rights of the people when a case occurs causing the courts to pause and to retrace the boun

Seely v. Pittsburgh.

dary of delegated power. Thus the stealthy steps of invasion may be detected and the power denied, ere it be too late and a precedent become fixed beyond judicial control. This is such a case. The attempt is to apply, here, the frontage rule of valuation of compact city lots to a rural population, and make farm property and town lots indiscriminately pay for an expensively paved city highway, under the name of a street, running far out into the country. The assumption is that by the addition of extensive rural districts to a city, the whole surface is brought by the legislative power within the sphere of city taxation for municipal purposes; and cases are cited of local or special taxation for local purposes, as justifying this stretch of power. But seeming analogies must not be allowed to lead our minds astray. Fortunately this subject has been examined in several recent cases, leading to a fuller development of the principles at the foundation of this power. Prominently among them is Hammett v. Philadelphia, 15 P. F. Smith, 146; S. C., 3 Am. Rep. 615, and Washington Avenue, 19 P. F. Smith, 352; S. C., 8 Am. Rep. 255. In the early cases the mode of determining the benefits, to pay the damages and the cost of construction, was by actual view and assessment. McMasters v. Commonwealth, 3 Watts, 292; Fenelon's Petition, 7 Barr, 173; Extension of Hancock street, 6 Harris, 26. These were followed in the later cases of Commonwealth v. Woods, 8 Wright, 113; McGee v. Pittsburgh, 10 id. 358; Wray v. Pittsburgh, id. 365. Afterward came the frontage mode of equal valuation per foot front. Schenly V. Allegheny, 1 Casey, 128; Philadelphia v. Tryon, 11 id. 401; Schenly V. Allegheny, 12 id. 57; McGonigle v. Allegheny, 8 v. Wright, 118; Stroud v. Philadelphia, 11 P. F. Smith, 255. In none of these cases was there a close examination of the per foot front rule, but it seems to have been assumed as a convenient approximation where the property fronting on the street was of a kind and not differing much in value. But in Washington avenue it is shown that this mode of valuation is but a substitute for actual assessment. It is there said: "So long, therefore, as a law faithfully and reasonably provides for a just assessment according to the benefits conferred, and does not impose unfair and unequal burthens, it cannot be said to exceed the legislative power of taxation when exercised for proper objects. It is on this ground only that assessments according to the frontage of property on a public street to pay for its opening, grading and paving, can be justified. As a VOL. XXII. — 96