the issue for opening the street when he takes the necessary steps to do so, as provided by the act of assembly on that subject. If the city has gone upon the land to construct the sewer before it has a right to do so, the street not having been opened, the plaintiff has his remedy for injury to his property by reason thereof if he has sustained any, but it cannot be tried in a proceeding such as this. He cannot obtain payment for taking his property for the opening of the street and also for constructing a sewer within the lines of the street, the latter being included in the former. We, therefore, discharge the rule for a new trial. Legal Miscellany. When a Governor is not a Governor. The question in Expartee Crump Criminal Court of Appeals on Oklahoma), 135 Pacific Reporter, 428, is, Does a Governor's absence from a state for a few hours or days serve to put in force the constitutional provisions allowing the Lieutenant-Governor to act in his place? George Crump was convicted on a charge of forgery to serve a seven-year term in prison. Lieutenant-Governor J. J. McAlester pardoned him in the absence of Governor Lee Cruce. The return to the writ of habeas corpus denied that Crump was pardoned, stating that the purported pardon was void in that it was attempted to be granted without authority of law by the Lieutenant-Governor of the state when the Governor was qualified and acting, and when the occasion contemplated by the Constitution for the Lieutenant-Governor to act as Governor had not arisen. The Governor on his return immediately directed respondent to disregard the pretended pardon, and insisted that his absence was merely temporary, and did not warrant the Lieutenant-Governor in acting in his place. The court said: "A pardon is an act of grace and mercy bestowed by the state, through its chief executive, upon offenders against its law. Yet a pardon properly granted is also an act of justice, supported by a wise public policy. While the power to pardon, parole, reprieve, or commute after conviction for offenses against the state is a matter of executive discretion, this discretion should be exercised on public considerations alone. An undue exercise of the pardoning power is greatly to be deplored. It is inexcusable. It is a blow at law and order, and is an additional hardship upon society in its irrepressible conflict with crime and criminals. If the Governor believes a law under which the prisoner has been convicted to be unjust or too harsh, still he should not for that reason alone exercise the pardoning power. The duty of mitigating the severity of the law lies with the legislature. As an officer he should look upon the law as wise and just, whatever may be his private opinion. An abuse of the pardoning power may be so great as to warrant an impeachment of the officer who exercises. it. *** A full unconditional pardon takes effect upon delivery either to the person who is the subject of the favor or to some one acting for him on his behalf. After delivery, a pardon cannot be revoked. The authorities, without any conflict whatever, deny to the Governor any such power, and hold the pardon, when delivered, to be irrevocable. *** An abuse of the pardoning power does not authorize the courts to decline to give effect to a pardon, and no court has the power to review the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the Governor in the exercise of the pardoning power would be manifest usurpation of authority. *** The functions of chief magistrate were created for the benefit of the state and are local to it; and, as the constitutional functions of his office cannot be exercised out of the state, the effect of his absence from the state is to suspend his constitutional functions, and thereupon these functions devolve upon the Lieutenant-Governor, and he becomes and is de jure and de facto Gov ernor until the absent Governor returns to the state. *** It follows that the pardon granted and delivered by the Lieutenant-Governor as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon. A fortiori the warden had no authority to disregard it. As already indicated, the Governor has no power to revoke a full and unconditional pardon that has been delivered; therefore his order purporting to revoke this pardon was necessarily a mere nullity." Legal Definition. "What does you understan' by 'circumstantial evidence'?" asked Miss Miami Brown. "As near as I kin splain it, f'um de way it has been splained to me," answered Mr. Erasmus Pinkley, “circumstantial evidence is de feathers dat you leaves lyin' around after you has done et de chicken."-Washington Star. New System in O. C. Office. Beginning with January 1st, an improved system has been inaugurated in keeping the records of decedents' estates in the Registers and Orphans' Court Offices. As soon as letters are taken out an entry of the same is made on the docket to an appropriate number and term, and indexed, the entry showing the date of death and referring to the proper Affidavit Book, Bond Book and Will Book, and all papers are filed to the same number and term and kept together. This will greatly facilitate reference, and counsel are requested to always endorse on papers filed the proper number and term, which may readily be ascertained. O. C. ADJUDICATIONS. By JUDGE SMITH: Monday, January 19, 1914. N. C. Henninger, New Holland. Thursday, January 22, 1914. Henry G. Ginder, Manheim Boro. William H. Mentzer, New Holland. James L. Branson, Bucks County. William McCorkle, Chester County. E. Frances Sharp and Mary Ann Strohl, Ephrata Boro. Harry K. Husson, Warwick. Thursday, January 29, 1914. C. Edgar Titzel, City. Malnan H. Pownall, Christiana Boro. Mary's Orphan Asylum, of Lancaster, LANCASTER LAW REVIEW. Pa., the sum of $1,500, and gave to it, VOL. XXXI.] FRIDAY, FEB. 13, 1914. [No. 15 Common Pleas-- Law Johnson v. Hill's Executors. Discharge of surety by release of security. Where a creditor has the means of com pelling payment from the princ.pal debtor and by his own act gives it up, he thereby discharges the surety to the extent that he is injured thereby. E. on purchasing a property gave to A. a mortgage for $1,500, and to further secure the same loan gave a judgment bond for the same amount with W. as surety. Both securities were put on record at the same time. Subsequently the owner of the securities executed a paper postpon.ng the lien of the mortgage, which E.'s property was sufficient to pay, to that of a subsequent judgment against E. for a larger amount and proceeded on the judgment against property of W. Held, That the postponing of the lien of the mortgage prejudiced the surety and released the liability of his property to that extent, and that while the court could not revoke the postponement of the lien the judgment should be opened to permit a defense to the extent of W's prejudice. Rule to revoke or set aside postponement of lien and to open judgment, etc. C. P. of Lancaster County. January Term, 1912, No. 215. B. F. Davis, for rule. J. W. Johnson, contra. as security, a mortgage, dated April 26, 1890. This mortgage was duly recorded in the Recorder's Office of Lancaster County, in Mortgage Book No. 56, at page 386, on June 12, 1890. It would seem that the mortgage security was not deemed sufficient by the mortgagee to secure the loan, for, at the same time, a judgment bond was given to the Orphan Asylum, for $1,500, signed by Eber E. Hilton and Wilson Hill. This judgment bond was entered in the Prothonotary's Office on June 12, 1890, to April Term, 1890, No. 456. The proof is, that the two obligations were for the same debt. While Wilson Hill ultimately got the $1,500 thus borrowed from the Orphan Asylum, he received it through Eber E. Hilton as part of the purchase money of the land thus sold by him to Hilton. At that time, Wilson Hill owned a farm in said Little Britain Township, with buildings thereon, laying close to the tract sold by him to Hilton, and the judgment thus entered became a lien upon this land. Wilson Hill died on September 23, 1890. He made a will in which he devised his farm to Margaret C. Hill, who was also his. executrix. Margaret C. Hill died on January 29, 1913, and devised the same to her daughter, A. Belle Hilton, whom she also appointed her executrix. On April 1, 1909, the St. Mary's Orphan Asylum transferred the mortgage and the judgment to Charles L. Ambler, and on September 23, 1913, Charles L. Ambler transferred the same to Margaret E. Johnson, the plaintiff. On September 24, 1913, Miss Johnson executed January 17, 1914. Opinion by LANDIS, a paper, postponing the lien of the mort P. J. Most of the facts of this case are matters of record, and such others as are material we think are undisputed. About April, 1890, Eber E. Hilton purchased from Wilson Hill a tract of land, located in Little Britain Township, containing 60 acres and 116 perches, for about the sum of $2,000. Hilton did not have enough money to pay the purchase price, and so he borrowed from St. gage to a judgment of $1,764.54, entered to June Term, 1913, No. 31, held by the Liebig Manufacturing Company, of Cartaret, New Jersey, against Eber E. Hilton. This judgment was originally entered against Hilton, to January Term, 1895, No. 275, and was revived from time to time against him. Margaret E. Johnson now claims that, notwithstanding the postponement of her mortgage to the judgment of the Liebig Manufacturing Company, she has a right to collect, by process on the judgment which she holds against Hilton and Hill, the amount of the debt due to her, by a sale of the III acres now owned by A. Belle Hilton; and the contention of Mrs. Hilton is, that, as Wilson Hill was but a surety for Eber E. Hilton, the lien of the judgment against her land was released by Miss Johnson to the extent that she has been prejudiced by the postponement of the mortgage on Eber E. Hilton's farm to the judgment of the Liebig Manufacturing Company. The depositions show that the Eber E. Hilton farm is without buildings and is worth about $30 per acre; but it has not yet been sold, and what it will bring is, therefore, mere surmise. In Holt v. Bodey, 18 Pa., 207, it was held that, "if the assignee of a joint bond by two persons, one the principal debtor and the other his surety, upon which he has had judgment entered, release from its lien real estate of the principal debtor sufficient to pay the judgment, he thereby discharges his surety. ** If any of the property of the principal has been released, it is incumbent on the creditor to show that the part released could not have been made available at all, or not beyond a certain amount; to the extent of the value of the part released, the surety is discharged. And it is not material whether the creditor knows or does not know, at the time of the release, of the relation of principal and surety between the debtors." In that case, Mr. Justice Lowrie said: Principles of equity are law with us, because we receive them as rules of right, and accommodate our forms of procedure to the admission of them. They are distinguished from principles of law elsewhere, because their force is acknowledged only in peculiar Courts, and the forms of what are called their common law Courts do not furnish the means of enforcing them. We have adopted as law the equitable principle that, where a creditor has the means of compelling payment from the principal debtor, and by his own act gives it up. he thereby discharges the surety, and this even when the debt is secured by a joint mortgage or judgment against both: Neff's 66 Appeal, 9 W. & Ser., 36. * * * From the surety's right of substitution, his right of discharge, when the substitution has been rendered fruitless by the act cf the creditor, follows as a corollary. We give up our own right against him whose countervailing right we have destroyed." The principle is stated in 32 Cyclopedia of Law and Procedure, page 225, thus: "A relinquishment, loss or misapplication of security by the credi tor does not discharge the surety entirely, but to the extent only to which he has been injured thereby, which is the value of the security so misapplied, lost or relinquished, and such value is prima facie the face value at the place where the security is enforceable. The liability of the surety is not affected if he has not suffered any injury by the act of the creditor, but the burden is on the creditor to show that the surety has not been injured." In Wharton v. Duncan, 83 Pa., 40, it appeared that W., to procure a line of discount for the firm of which he and his brother were the members, executed to a bank a mortgage of his individual real estate. The security of this mortgage being deemed insufficient, the mother of W. executed a mortgage of her real estate to provide further protection to the bank. The condition of each mortgage was to secure the payment of the notes to be discounted for the firm to an amount not to exceed $25,000. Notes to the amount of $20,000 being held by the bank, on the payment of $10,000 by W., his mortgage was satisfied without the knowledge of his mother, and the firm having subsequently failed, suit was then brought by the bank on her mortgage to recover the amount of the residue of the notes unpaid. It was held "that the relation of defendant to the parties and the transaction was that of surety of W. alone, and she had the right to require that the value of the property covered by the lien of the mortgage of W. should be exhausted before recourse could be had to her mortgage, and the satisfaction of the mortgage of the principal debtor operated as a discharge pro tanto of that of the surety." See, also, Neff's Appeal, 9 W. & Ser., 36; Schock v. Miller, 10 Pa., 401; Gries 1 It is true that, in the cases cited, there was no postponement of the rights of the creditor to a third party; but it seems to me that this makes no difference, and that the principle involved in the relation between principal and surety is the same in both instances. As Eber E. Hilton was the principal debtor, and the mortgage against his farm would, according to the testimony, have paid his debt, when Miss Johnson released that farm, she, also released her right to proceed against the surety. mere v. Thorn, 32 Sup., 13. In Molaka | individually, or as executrix of Margaret v. American Fire Insurance Company, C. Hill, deceased, is concerned, and that Appellant, 29 Sup., 149, it was held that, the said judgment of $1,500, as well as when a creditor has in his hands the the mortgage accompanying it, above remeans of paying his debt and does not ferred to, be restored to their former use it, but gives it up, the surety is dis- position as first liens against the premcharged as far as the security surren- ises of said Eber E. Hilton, the same not dered would have reached to pay." being of sufficient value to pay the $1,Everly v. Rice, 20 Pa., 297; Fritch v. 500 judgment and the judgment of your Citizens' Bank, 191 Pa., 283. petitioner, and the said judgment of the Liebig Mfg. Co., or that the Court make whatever order in the premises as to it may appear just and proper," and the rule granted, as endorsed on the petition by counsel, shows it to be a rule "to show cause why postponement of lien should not be revoked or set aside, and judgment opened so far as petitioner and estate of Marg. C. Hill is concerned, and judgment of $1.764.54, held by Liebig Mfg. Co. not to take precedence to judgment of January T. 1912, No. 215, or of mortgage which it accompanies, entered and recorded in Mortgage Book 56, page 386, in Recorder's Office, v. Eber E. Hilton, which mortgage now stands to use of Margaret E. Johnson." Therefore, because it is concluded that the Court has no power to annul or set aside the act of Miss Johnson, that contention of the petitioner cannot be sustained; but, in order that the rights of the parties may be determined, the judgment is opened so far as A. Belle Hilton is concerned, and she is permitted to enter into a defense. To this extent only the rule is made absolute. There is no right in this Court to set aside the judgment of the Liebig Manufacturing Company and place the parties in the same relation that they were before that action was taken; nor has the petitioner, A. Belle Hilton, any right to ask for such a remedy. Miss Johnson had the right to postpone her mortgage at her own peril. All that Mrs. Hilton is interested in is, to be placed in the same position as if no such postponement had ever been made, and this can be done and her rights can be preserved by opening the judgment as to her and by permitting her to make a defense to the extent that she has been prejudiced. In the present instance, the prayer of the petitioner is for the Court to make an order upon the said Margaret E. Johnson, the present holder of the said judgment and revival thereof, restraining her from issuing execution. thereon against the premises of your petitioner, the same being a farm situated in Little Britain Township, devised to her by said Margaret C. Hill, and also that the entry on the records of said Court postponing the lien of the said judgment of the Liebig Mfg. Co. v. Eber E. Hilton, in the sum of $1,764.54, with interest and costs, be set aside or revoked, so far as she, A. Belle Hilton, Rule made absolute. Telephone-Long-Distance Message- The first case involving the liability for toll of a subscriber for permitting a nonsubscriber to use his telephone for longdistance messages is the Tennessee case of Cumberland Teleph. & Teleg. Co. v. Southern R. Co., 45 L. R. A. (N. S), 990, which holds an employer is not, although he permits his employees to have access to his telephone, personally liable for long-distance messages sent by them concerning their personal affairs. |