to be regulated by the general laws. The assessor is plainly remitted to the general law to govern himself accordingly. The list is handed to him in the last of September or 1st of October, after the taxes of the current year have been assessed and gone into collection. He is the same assessor who is to assess the next year's tax. The assessment is plainly, therefore, a part of the assessment of the same fall for the next year's tax, and the evident purpose of this act is to secure the proper assessment of each registered voter every fall. It is for this reason every registered person is to be assessed, and the list to be returned to the commissioners, who carry it into the approaching assessment, and must take care that no one is doubly assessed; and if he be, he has his remedy by appeal, at the usual time and place.

It is also objected that the list is handed over to the assessors too late to make the assessment ten days before the election. But as the purpose, as already stated, was to furnish a system for taxing all the electors every year, it is evident this provision was not intended to supply the means of assessment for untaxed electors in time for the ensuing election, and therefore does not supply the old law which exists for this purpose. Those, therefore, who have not paid a tax within two years can still avail themselves of the old law, and procure themselves to be assessed ten days before the election, and thus entitle themselves to vote as heretofore. It is also to be borne in mind that the assessment is no part of the registry, and that one whose name is registered can therefore vote on any payment of taxes within the constitutional provision.

But were all these objections to the proceedings before the canvassers to be conceded, what right have we, at the instance of these plaintiffs, to restrain the board of aldermen? The injunction should issue against the canvassers only, to restrain them from executing that portion of the law we may deem to be invalid. Clearly, they have a right to make out lists, and erase and correct them by proper legal evidence. If they undertake to make witnesses swear to impossibilities, or the party to swear to a future residence, or to do any illegal act, the remedy belongs to the injured party, and lies against the canvassers, and not against the aldermen. The appointment of the canvassers is clearly a valid act, and if disputable, certainly no one but the aldermen themselves can complain of the duty exacted. This is a wholesale proceeding against everybody,―aldermen, councils, and city officers,—as if the

legislature had no power to regulate the subject of elections at all.

What right have we, as a court, to set ourselves against the whole system, a matter within the undoubted power of the legislature? We are not a counsel of censors to revise legislation, but our whole duty is performed when we redress the wrong of a party injured by some invalid portion of the law. The system is charged with expensiveness, but the remedy for this lies with the people themselves and their representatives. The question of a registration is not a new thing. It was thoroughly investigated, and decided to be a valid exercise of legislative power, in Capen v. Foster, 12 Pick. 485. The opinion of Chief Justice Shaw is one of marked ability, and I cannot do better than to transcribe the following paragraphs:

"The constitution, by carefully prescribing the qualifications of voters, necessarily requires that an examination of the claims of persons to vote, on the ground of possessing these qualifications, must at some time be had by those who are to decide on them. The time and labor necessary to complete their investigations must increase in proportion to the increased number of voters, and, indeed, in a still greater ratio in populous commercial and manufacturing towns, in which the inhabitants are frequently changing, and where of necessity many of the qualified voters are strangers to the select

men.

"If, then, the constitution has made no provision in regard to the time, place, and manner in which such examination shall be had, and yet such examination is necessarily incident to the enjoyment and exercise of the right of voting, it constitutes one of those subjects respecting the mode of exercising the right, in relation to which it is competent to the legisla ture to make suitable and reasonable regulations, not calculated to defeat or impair the right of voting, but rather to facilitate and secure the exercise of that right.

"And the court is of opinion that the provision in the general law regulating elections, and that in the act incorporat ing the city, which requires that the qualifications of voters shall be previously offered and proved, in order to entitle them to vote, that their names shall be entered upon an alphabetical list or register of voters, is highly beneficial and useful, calculated to promote peace, order, and celerity in the conduct of elections, and as such to facilitate and secure this

most precious right to those who are by the constitution entitled to enjoy it; that it cannot be justly regarded as adding a new qualification to those prescribed by the constitution, but as a reasonable and convenient regulation of the mode of exercising the right of voting, which it was competent to the legislature to make; and therefore that these legal enactments, not being repugnant to the constitution, are valid and binding laws, to which both voters and presiding officers at elections are authorized and bound to conform.

"Nothing but the carelessness or neglect of the voter himself, or some accident not attributable to the law or the officers who are to execute it, can deprive him of the power of proving his right and exercising his privilege, and against these it would be difficult, either by legal or constitutional provisions, entirely to guard."

I therefore, for all these reasons, dissent from the judgment just entered by the court.

READ, J., dissenting. A majority of the court think that a registry law properly framed is constitutional, and well calculated to prevent frauds at election. I agree with my brother Agnew that the registry act is constitutional and could be carried into effective operation.

I was counsel of Mr. Kneass, in 1851, and of Mr. Mann, in 1856, and from what I saw in those contested election cases, I was fully convinced that the election laws were utterly inefficient in preventing fraud, and subsequent experience has confirmed me in my opinion. In some districts of the city"plague spots"-fraudulent voting is the rule, and honest voting the exception.

I am fully convinced that nothing but a registry law, honestly and firmly administered, can cure an evil which strikes at the root of our republican institutions.

RIGHT OF TAY-PAYER TO TEST IN EQUITY VALIDITY OF LAW under which assessment or expenditure is proposed to be made: Mott v. Pennsylvania R. R. Co., 72 Am. Dec. 664, and note 682.

STATUTES MUST BE CONSTRUED ACCORDING TO THEIR PLAIN AND OBVIOUS MEANING: Lippitt v. Huston, 94 Am. Dec. 115, and note 123; and are presumed to be constitutional: Olmstead v. Camp, 89 Id. 221, and note 229; Davis v. Helbig, 92 Id. 646. But acts which are clearly unconstitutional must be declared so by the judiciary, without reference to their expediency: Coffman v. Bank of Kentucky, 90 Id. 311.

IT IS FOR LEGISLATURE TO PRESCRIBE TIME AND MANNER of calling and holding elections: Brodhead v. Milwaukee, 88 Am. Dec. 711, and see note

725; essentials to validity of elections: People v. Bates, 83 Id. 745, and extended note 749.

THE PRINCIPAL CASE IS CITED to the points stated, as follows: It is too late to question the right of a tax-payer, where money is to be raised by taxation or expended by the treasury, to proceed in equity to test the validity of the law under which the proposed assessment or expenditure is to be made: Wheeler v. Philadelphia, 77 Pa. St. 348; Pittsburg's Appeal, 79 Id. 324. One of the equity powers of the court is, the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights of individuals: Wells v. Bain, 75 Id. 57. Whatever the constitution enjoins to be done in a particular way amounts to a prohibition of all other modes and methods of doing the same thing: Commonwealth v. Conyngham, 65 Id. 83. A law intended to take away or unnecessarily postpone or embarrass the right of election would be set aside as unconstitutional: Patterson v. Barlow, 60 Id. 87. The registry act of April 4, 1868, was declared to be unconstitutional, on the ground that it deprived persons of their votes, who moved into an election district more than ten days prior to an election, but less than twenty: In re Election of McDonough, 105 Id. 492.

KELLER V. AUBLE.

[58 PENNSYLVANIA STATE, 410.]

DECEDENT'S POSSESSION OF LAND HELD UNDER CLAIM OF TITLE up to the time of his death descends to his heirs as tenants in common.

WHERE POSSESSION OF LAND HAS DESCENDED TO POSSESSOR'S HEIRS as tenants in common, one of them, who was also executor of the will, and whe bought the land from a third person claiming to hold a perfect title, cannot hold the land against his co-tenants. EJECTMENT-WHEN TENDER NEED NOT PRECEDE SUIT.- The possession of land descended to the heirs of the possessor as tenants in common. One of them, who was also executor, bought the outstanding title, and held the land against his co-tenants. Held, in ejectment against him, that as the defendant claimed in opposition to the trust, it was not necessary that a tender of the purchase-money should precede the institution of the suit.

ACTION of ejectment. The head-note and opinion sufficiently state the case. The jury found for the plaintiff, and the defendant took a writ of error.

J. Gibson, for the plaintiff in error.

V. Keesey, for the defendant in error.

By Court, THOMPSON, C. J. Title by the statute of limitations in the ancestor of the parties to this suit was negatived by the jury, and the only party who could complain of this is the defendant in error. But she makes no complaint, and therefore all question on that subject is out of this case.

There was abundant evidence in the case that Samuel

Keller, the father of both parties, had long claimed and exercised acts of ownership over the land in dispute, and up to the time of his death. Whether his title was perfect or not, we need not inquire. His possession descended to his heirs as tenants in common. They would succeed by descent cast. Was it competent, therefore, to one of the executors, which the plaintiff in error and defendant below was, to buy in an outstanding title and hold against his co-tenant? The authorities cited by the defendant in error, to which many more might be added, most clearly establish that it was not, and to them we refer. His purchase was for the benefit of the tenants in common, if they, or any of them, chose to claim it. Magdalene Keller did so choose, and recovered. The defendant below claiming in opposition to the trust, it was not essential that a tender should have preceded the institution of the suit: Beck v. Uhrich, 16 Pa. St. 503.. This equity was preserved in the conditional verdict.

Seeing no error in any part of the case, the judgment below is affirmed.

UPON DEATH OF ANCESTOR, HIS LAND PASSES TO HIS HEIRS or devisees: Chambers v. Wright, 93 Am. Dec. 311, and note 314; and see Walbridge v. Day, 83 Id. 227, and note 230; Austin v. Bailey, 86 Id. 703.

EJECTMENT BY TENANT IN COMMON AGAINST CO-TENANT: Carpentier v. Mendenhall, 87 Am. Dec. 135; Harrison v. Taylor, 82 Id. 159.

THE PRINCIPAL CASE IS CITED to the point that a conveyance to one of several tenants in common, or a deed to one of two devisees of the same land, shall inure to the benefit of all who come in under the same title, and are holding jointly and in common, in Dickey's Appeal, 73 Pa. St. 247; and is cited to the point that when several persons have a joint or common interest in an estate, one cannot purchase an encumbrance or an outstanding title, and set it up against the others, for the purpose of depriving them of their interest, in Duff v. Wilson, 72 Id. 447.

CUMBERLAND VALLEY MUTUAL PROTECTION COMPANY V. Douglas.

[58 PENNSYLVANIA STATE, 419.]

INSURANCE OF BUILDING AS "DWELLING-HOUSE,” OR AS "OCCUPIED DWELLING-HOUSE," does not imply an engagement that it shall always be occupied while the risk endures.

LN ABSENCE OF EXPRESS STIPULATION TO CONTRARY, CHANge of TenantS has no effect on contract of insurance of a dwelling-house, if the use be not changed.

POLICY OF INSURANCE IS PROTECTION AGAINST FIRE CAUSED by the insured's own negligence, unless the negligence amounts to fraud.