being included in the fee allowed him, will not be again allowed the executors in their account.

3. A charge of $110 as counsel fee in preparing two returns of sale by the executors, and obtaining the necessary orders therein, is excessive.

4. A charge of $45 as counsel fees for drawing a petition to change the terms of a sale by the executors will be disallowed, as a motion would have answered the purpose.

5. A charge for legal services in a settlement between some of the heirs and executors, which

services were for the benefit of the heirs, will not be allowed the executors.

6. No necessity being shown for the attendance of counsel at sales of land by the executors, a charge of $100 therefor will be disallowed, as also a charge of $10 in procuring purchasers; but $50 will be allowed for instructions and general advice in regard to the sales.

7. Counsel are not entitled to a fee for depositing mortgages in the recorder's office for record.

8. When the evidence does not satisfactorily show the value of legal services rendered the executors on a sale of land, and they have not yet accounted for the proceeds, a charge for such services will be disallowed without prejudice.

Appeal from orphans' court, Allegheny county; OVER, Judge..

Exceptions by Mary A. Aufhammer, one of the distributees, to the account of James Barton and others, executors, etc., of William W. McGregor, deceased, appointed to sell land of the deceased in partition. On their appointment, the executors employed counsel and entered on the discharge of their duties, and succeeded by various sales in disposing of the property, which sales were confirmed by the court. The exceptions were to the allowance of the amount paid for counsel fees, and also to commissions claimed by the accountants. The auditing judge dismissed the exception as to commissions, but surcharged the accountants with $280 paid as counsel fees, delivering the following opinion:

"The charge of $15 by the trustees' counsel, for preparing and having their bond approved, is excessive. Ten dollars is liberal compensation for these services. The services rendered in the collection of N. Peterman's percentage were unnecessary. She was one of the heirs, and the trustees could have protected themselves on the distribution of the fund. The charge of $15 for these services is therefore disallowed, as are also the charges of $10 for preparing quitclaim of Mary Booth, and $10 for procuring her consent to amendment. These services were rendered by counsel, as attorney conducting the partition proceedings, and the charges were made in bill filed by him, in his application for a rehearing in regard to the fixing of his fee, and were considered by the court upon that application, as being included in the fee allowed him. In the first return of sale the trustees only reported a portion of the property sold, and prayed for an extension of the return-day as to the balance. Their counsel have charged $60 for their services in preparing the return and obtaining two orders therein. Thirty-five dollars is liberal compensation for these services; and $30 is, also, for preparing the second return,

and obtaining the orders therein, for which $50 is charged. The terms of sale as to N. Peterman and W. S. Barton could have been changed upon motions without petitions, and $10 is ample compensation for all the services necessary, for which there is charged $45. Twenty-five dollars is charged for preparing petition, and obtaining an order amending return as to W. P. R. R. Co. Ten dollars is sufficient compensation for these services. The settlements made between some of the heirs and the trustees, for which $35 is charged, were for the benefit of the heirs who had become purchasers, and they should pay for any legal services necessary. This charge cannot, therefore, be allowed. The duty of having Robert McGregor's recognizance filed and approved did not devolve upon the trustees, and the charge of $15 for these services cannot be allowed. The charges made for preparing the deeds are sufficiently large to include the services necessary to have them acknowledged, for which $15 is charged. This is not, therefore, allowed. One hundred dollars is charged for the services of counsel in attending four sales. It was not shown that there was any necessity for their attendance at these sales, and no allowance can be made for it. would be necessary, however, for them to give general advice and instructions in regard to them, and $50 will be allowed for it. It is not part of counsel's duties to procure purchasers, and the charge of $10 for these services cannot be allowed. Ten dollars are charged for services in recording mortgages and in re deed W. P. R. R., and $20 for services in connection with purchase of W. P. R. R. Nothing should be allowed for depositing mortgages in the recorder's office for record; and, as to the W. P. R. R. purchase, the trustees have not yet accounted for the purchase money. The evidence does not show satisfactorily the value of the services, and it may be, if necessary, they were made so by the trustees' negligence. These charges are therefore disallowed now, without prejudice to a claim being made therefor hereafter."

It

From a decreee of the court in bank refus. ing to strike off the surcharge the executors appeal.

J. M. Caldwell and A. J. Barton, for appellants. John G. Bryant, for appellee.

PER CURIAM. The decree is affirmed, and the appeal dismissed, at the costs of the appellants.

(131 Pa. St. 568) BALTIMORE & P. R. Co. v. SLOAN et al. (Supreme Court of Pennsylvania. Jan. 6, 1890.) EMINENT DOMAIN-COMPENSATION.

In an action for damages caused by the construction of a railroad through an 8-acre tract of land, it appeared that separated from it by a public road was another tract of 16 acres, also owned by plaintiffs, but which was untouched and unaffected by the railroad. Both parties introduced evidence as to the value of the 16 acres, to which no exception was taken; and neither party moved to strike out the evidence or asked for instructions

thereon. Held, that a charge was not erroneous which allowed the jury to add the 16 acres to the 8 acres, and, from the value thus ascertained, deduct the value of the 16 acres.

Error to court of common pleas, Delaware county.

W. B. Broomall, for plaintiff in error. Robinson & Green, for defendants in error.

MCCOLLUM, J. The plaintiffs are the owners of two pieces of land, situate in Darby borough, Delaware county, and separated by a public road. They received a convey. ance of these properties in the settlement and division of their ancestor's estate, and at a valuation of $27,000. One lot contains 8, and the other 16, acres. Through the 8-acre lot the defendant company built its railroad in 1884, and this suit was brought to recover the damages caused by its construction. It is admitted that the 16-acre lot is untouched, and that its market value is neither increased nor diminished by the railroad. It is a distinct tract, and it is not essential to the convenient use and occupation of the 8-acre lot. It is probable that these lots would bring more in the market if sold separately than if sold as one property. The value of the 16acre lot is not therefore material to this issue, nor a proper factor in it. But both parties introduced evidence of its value, and neither party excepted to it, asked for instructions upon it, nor moved to strike it out. The defendant company now complains of the use made of this evidence by the learned judge in his charge to the jury, and that its claim, and the evidence produced to support it, were inadequately presented by him. This, as explained by the argument to sustain it, means that all the evidence relating to the value of the 16-acre tract and the property as a whole should have been withdrawn from the consideration of the jury, or that an additional formula, based exclusively upon the evidence of the value of the 8-acre lot before and after the construction of the railroad, should have been suggested for the calculation of the damages. In considering this complaint, however, we are met by a record which shows that both parties gave evidence of the cost and value of the entire property, and of the value of the lots separately. The formula suggested by the learned judge rested, therefore, upon the evidence of both parties. It was adapted to the claims of both, and was not framed in the interest or to the prejudice of either. It allowed the jury to add the value of the 16 acres to the value of the 8 acres, and, from the value of the whole property thus ascertained, to deduct the value of the 16 acres. It led to the same result as a calculation which excluded the value of the 16 acres, but by a circuitous route. It was, however, adapted to the evidence produced by the litigants, and the natural outcome of it. It called for a review and consideration of all the evidence in the case, for the purpose of determining the depreciation caused in the market value of the 8-acre lot by the

location and construction of the railroad. It was decided in Scott v. Sheakley, 3 Watts, 50, that, if illegal evidence be given without objection, it is not error to consider it in the charge. The instruction complained of in this case is substantially a direction to find from all the evidence the damages to the 8-acre lot. The risk as to damages, and the legal principles governing the issue, were clearly and correctly stated. The jury were distinctly instructed to find from the evidence what the 8-acre lot would have sold for, unaffected by the railroad, and what it would have sold for as affected by it, and that the difference was the true measure of compensation. The verdict is fairly responsive to the evidence as a whole, and to that portion of it which directly estimates the value of the 8-acre lot before and after the location of the railroad. As we see no error in the charge, the specifications are dismissed, and the judgment is affirmed.

(52 N. J. L. 60) MORGAN V. JERSEY CITY & B. R. Co. (Supreme Court of New Jersey. Nov. 13, 1889.) STREET-RAILWAY COMPANIES-EJECTION OF PASSENGER-LEGAL TENDER.

A genuine silver coin, worn smooth by use, not appreciably diminished in weight, and distinguishable, is a legal tender for car fare; and, if ejected for refusal to make other payment, the passenger may have an action for damages.

(Syllabus by the Court.)

Error to circuit court, Hudson county; before Justice KNAPP.

Argued before the Chief Justice and DEPUE, VAN SYCKEL, and SCUDDER, JJ. Thomas J. Kennedy, for plaintiff. denburgh & Garretson, for defendant.

Vre

SCUDDER, J. The defendant company was running a horse-car railroad in certain streets of Jersey City. The plaintiff and his wife entered one of their cars, and, after riding a short distance, he handed to the conductor, in his own language, "one of the coins, ten cents,-a smooth American coin." The amount was right for two fares; but the conductor refused to receive the coin, because it was worn smooth. The plaintiff protested, paid his wife's fare, five cents, with another small coin, and on refusal to pay for himself with any other money than the dime he had offered, was ejected from the car. This action was brought to recover damages for the alleged unlawful ejection, and a recovery had by the verdict of a jury. On the writ of error in this court the single question presented is whether the judge, in his charge to the jury, gave the proper direction. He said that the plaintiff "tendered this ten-cent piece, a gen| uine and recognizable coin of the United States, and that was his lawful fare, provided that you believe that the coin is in the condition in which it was when issued from the

mint, except as it has been changed by proper | use. If there has been no other abrasion, no other wearing away, no other defacement of that coin, except such as it has received in the passing from hand to hand, then it is still, under the laws of the country, a good ten-cent piece, and was the fare of the plaintiff. If you think it has been otherwise changed, willfully changed, etc., it has ceased to be a lawful coin of the country, and it has ceased to be lawful tender." This instruction, we think, was substantially correct. By the act of March 3, 1875, (Rev. St. U. S. § 3586,) "the silver coins of the United States shall be a legal tender, at their nominal value, for any amount, not exceeding five dollars, in any one payment." By the act of January 9, 1879, (Supp. Rev. St. U. S. 488,) the holder of any of the silver coins of the United States of smaller denomination than one dollar may, on presentation of the same in sums of $20, or any multiple thereof, at the office of the treasurer of the United States, receive therefor lawful money of the United States. Section 3 increases the legal tender of silver coin to the sum of $10, instead of $5, under the previous statute. In section 3585 of the Revised Statutes, the gold coins of the United States are made a legal tender in all payments at their nominal value, when not below the standard weight and limit of tolerance for the single piece; and, when reduced in weight below such standard and tolerance, shall be a legal tender at valuation in proportion to their actual weight. The limit of tolerance for gold coin referred to is found, in sections 3505 and 3511, to be, when reduced in weight, by natural abrasion, not more than one-half of 1 per centum below the standard weight prescribed by law, after a circulation of 20 years, as shown by the date of coinage, and at a ratable proportion for any period less than 20 years. This particularity in the limitation and allowance as to gold coin is not found in the case of natural abrasion in silver coins. This difference is very noticeable and important in a question of statutory construction and legislative intention. It seems by these statutes that, so long as a genuine silver coin is worn only by natural abrasion, is not appreciably diminished in weight, and retains the appearance of a coin duly issued from the mint, it is a legal tender for its original value. U. S. v. Lissner, 12 Fed. Rep. 840. The coin in question in this case was shown in court to the jury. It does not appear in the evidence to have been so worn that it was light in weight, or not distinguishable as a genuine dime. With no limitation put upon its circulation by the government, it would seem that none was intended, so long as it was not defaced, cut, or mutilated, and was only made smooth by constant and long-continued handling, while being circulated as part of the national currency. The instruction was right, as the facts appear, and as the jury found them; and the judgment will therefore be affirmed.

(8 Houst. 557) MCKENNEY . DIAMOND STATE LOAN ASS'N. (Superior Court of Delaware. Dec. 18, 1889.)

LOAN ASSOCIATIONS-WITHDRAWALS.

1. The provisions in the by-laws of a loan association, requiring a stockholder to give one month's by the company, and an oral notice accepted. notice of his intention to withdraw, may be waived

2. A person has the right to treat the by-laws given to him on his becoming a member of the association as all the by-laws such association had, and he is not bound to take notice of modifications of such by-laws, with respect to withdrawing, on the record of the company simply, without further notice to him; which notice must be proven by the defendant company to have been given.

3. The plaintiff, a member of the association, having given verbal notice of his intention to with. draw from the company, and the secretary of the company marking, in a book kept for that purpose, "December 14th, 1887, McKenney," and it being proved that the company had theretofore acted upon such notice as a substantial compliance with the requirement of the by-law contained in the book given to the plaintiff when he became a member, the company cannot set up another by-law on its record, of which the plaintiff had no actual notice, to defeat plaintiff in his action. Oral notice given to any one acting for the secretary in his absence, and at his place of business, would be as effectual as if given to the secretary himself.

4. A withdrawing member of a loan associa tion in failing circumstances is entitled to the present worth of his stock, less fines, interest, and inbut not losses and expenses. surance due from him, as provided by the by-laws,

In April, 1884, McKenney joined the Diamond State Loan Association, taking five shares of stock. He paid on these shares $5 a month from that date up to and including November, 1887, making 44 payments, amounting in all to $220. December 16, 1887, he gave notice to the loan association of his intention to withdraw from the association, and, under the terms of article 16 of the by-laws of the association, became entitled to receive "the amount actually paid in by him, less all fines, interest, and insurance due from him, with average interest at the rate of 6 per cent. per annum;" his claim, with interest being $271.25. The loan association refused to pay him, for the reasons -First, that he had not given written notice, as required by the by-laws; second, at the time he gave notice the association was partially insolvent, and that he could not withdraw the amount paid in, with interest, but should bear his proportionate share of the losses and expenses, whatever that might be. Plaintiff proved by the secretary and treasurer of the association that he (plaintiff) gave him verbal notice of his intention to withdraw on the 14th of December, and that he noted plaintiff's name in the withdrawal book as of that date, and submitted it to the directors; that that was the usual and uniform method of giving notice acted upon by the board of directors. The court refused to admit any testimony as to the insolvency of the institution, on the ground that, under the by-laws, the defendant corporation was entitled to deduct from the amount due him only fines, interest, and insurance, and that losses and expenses did not come under any of these heads.

If, on the contrary, you think that the plaintiff has not shown any right to recover by the proof that he has made in this case, then your verdict, as a matter of course, must be for the defendant.

(72 Md. 9)

MURGUIONDO et al. v. HOOVER. (Court of Appeals of Maryland. Dec. 18, 1889.) MORTGAGE-FORECLOSURE-SALE-PARTITION. 1. Code Md. art. 16, § 72, provides that proceedings to foreclose or to sell under mortgages may be instituted either in Baltimore city or county, if the lands lie partly in both, provided that "in case of a sale" under a decree of the city court a copy of the bill, decree, and trustee's report of sale shall be filed in the clerk's office, in the

county where any other part of such land shall lie, and on receipt of the copies the clerk shall "forthwith" docket and index the bill and other proceedings in his chancery docket, and record the same as though the cause originated in his court. Held, that where the trustee, in a mortgage of an undivided interest in two parcels situate in the city and county, respectively, obtains a decree of the city court for the foreclosure and sale of both, and sells the city lot, but fails for three years to record the decree in the county, he

cannot defeat the title of one who in the mean while, without notice of the decree, has bought from him the county lot, with the sanction of the county court.

2. A bill for partition, by the purchaser of the undivided interest in the county lot, which sets out the proceedings in the city court, and the failure to record the same in the county, is not multifarious, as partition can only be secured by disposing of the decree in the city court.

3. The purchaser may sue for partition, as he took an undivided interest in the land, unless it had already been changed by the former decree into a right to share in the proceeds of the sale it ordered.

Appeal from circuit court of Baltimore city. Argued before ROBINSON, BRYAN, MCSHERRY, FOWLER, and IRVING, JJ.

Benjamin F. Horwitz, and S. Gross Horwitz, for appellants. George Savage and A. H. Taylor, for appellee.

IRVING, J. The facts essential to the proper understanding and decision of this case are, briefly, as follows: Victor De Murguiondo, being the owner of one-fifth undivided interest in some ground-rents and reversions in Baltimore city, and 20 acres of land in Baltimore county, on the 30th of April, 1885, mortgaged his undivided fifth interest in the whole property to Elias Livezey, to secure $2,350. Upon the 10th of June following, Victor De Murguiondo filed his bill, in the circuit court for Baltimore city, against the owners of the remaining undivided interests, alleging the indivisibility of the property, and asking for a decree for its sale. Livezey, Victor's mortgagee, and Benjamin F. Horwitz, trustee for some of the parties who were infants, were made parties defendant. Process went out for the defendants, all of whom appeared and answered. Testimony was taken, and the case went to decree, which was passed on the 6th of July, 1885, for the sale of all the property. The Baltimore city property was sold and reported to the court; but the Baltimore county prop

erty, viz., the 20 acres of land here'involved, was not sold. It seems this land was offered for sale, and afterwards was withdrawn. Subsequently, Benjamin F Horwitz, the trustee named in Livezey's mortgage to sell on default, and also trustee named in the decree for the sale of the whole property, filed his bond in the circuit court of Baltimore county, as required by law in such cases, and advertised Victor De Murguiondo's one-fifth undivided interest in the 20 acres in Baltimore county, and proceeded to sell the same (Victor De Murguiondo's one-fifth interest) thereon, and on the 17th day of December, 1887, did sell the same to Daniel Hoover for $2,500, and on the 28th of July, 1888, conveyed, by deed duly acknowledged, the one undivided fifth interest therein to Daniel Hoover. The deed describes the interest sold as one undivided interest in the land, which is described by metes and bounds, courses and distances. Daniel Hoover's bill, now under consideration, is for partition. It alleges that partition can be made fairly and equally between the parties interested, and is very desirable. It sets out all the facts hereinbefore recited, and, as amended by leave of the court, avers that no part of the record of the proceedings in Baltimore city, under which decree was obtained for a sale of the undivided property, including the 20 acres now sought to be divided, up to the time when the plaintiff received his deed, had been recorded in Baltimore county; and that at the time of the plaintiff's purchase, and the conveyance to him by B. F. Horwitz, trustee, he had no notice of the alleged proceedings by which decree was secured for the sale of the land mentioned in the plaintiff's bill; and that the property was then situated in Baltimore county, and only became a part of Baltimore city by virtue of the act of 1888, c. 98. To the bill, as amended, the respondents demurred, (1) because the interest of the plaintiff does not entitle him to file his bill; (2) because the bill is multifarious; (3) because the proceedings in the case of Victor De Murguiondo v. Benjamin F. Horwitz et al., set out in the bill, cannot be reviewed in this way. The circuit court of Baltimore city overruled the demurrer, and from the order so ruling this appeal was taken.

1. By express description in his deed and its recitals, the plaintiff took an undivided interest in land; and, unless that interest had already been changed, by decree in the former case, into a right to share in the proceeds of sale it ordered, he has standing to maintain this bill, and that depends upon the effective character of that decree, which the last ground of demurrer is designed to raise, and does raise.

2. As to the question of multifariousness, we need only say we do not think the bill liable to that objection. The relief prayed for in respect to partition could not be secured, if the decree in the former case effectively and finally determined that the property now sought to be divided should be sold. In