chartered in 1869 "under and pursuant to the provisions of the act of the general assembly of 1859 and its several supplements.' The articles of the constitution and the by-laws are not in conflict with that act of assembly, but 5th article provides more than the 6th section of the act on the same subject. Its language is: "All premiums, fines and charges that may be paid by stockholders, under the charter and by-laws of the corporation, shall not be deemed usurious, and may be collected as other debts of like amount are now collected in this commonwealth, provided that such stockholders shall have signed an agreement containing the following words, to wit: We, the stockholders and trustees of stock in the Shickshinny Building Association, located at Shickshinny, Pa., whose names are hereto subscribed, do hereby agree to and bind ourselves, our heirs, executors, administrators and assigns, to abide by the provisions of the charter of the association, and such by-laws as are or may be hereafter adopted.”

In 1871, this decedent was a charter member and a stockholder. He owned two shares of stock, and borrowed from the association the amount of his stock, to wit: $400, less premiums, etc., for which he gave his judgment note in the sum of $400, which was entered of record. In 1876, this judgment was revived by amicable scire facias, with confession of judgment generally. He got on his loan about $230, making the premium $170. His dues and fines were paid up on his stock to 31st December, 1872, and he has paid to the association in all $280.89 since the loan. The association shows, by their secretary, that there is still due from the defendant in dues, fines, etc., the sum of $394.88 as of 30th June, 1877, the date when the association ceased to act.

The counsel for the widow and other creditors contend that as it has not been shown that the defendant signed the agreement specified in article 5, he is only liable for the loan with lawful interest. It will be observed that the agreement in question only provides that the members shall abide by the provisions of the charter and by-laws. It must also be observed that article 5 is in strict accord and almost in the language of the 6th section of the act of 1859, except the proviso. While it is true that the article provides for the signing of an agreement, yet without such signing every member is bound by the law of the charter as soon

as he becomes a member. It seems to us clear that the authority to exact premiums and fines beyond lawful interest does not come from the agreement, but from the act of assembly under which the charter was granted. The agreement provided for is not in the negative-that is, that all premiums, etc., shall be deemed usurious unless the member sign the agreement. The signature of the member might have been insisted upon by the association as a condition precedent to the loaning of the money, but it does. not seem possible that a borrower can set up his omission as a defense after he has borrowed the money, and for years before and afterwards has paid his fines and dues, and in all other respects has complied with the charter law. This decedent was a charter member, and of course a stockholder. It is not a valid objection to a charter that some of its articles contain provisions not authorized by the act of 1859, and on a scire facias to revive a judgment entered on a bond given by a stockholder, he cannot set up as a defense an alleged conflict of some of its provisions with the general law. Becket v. Uniontown Association, 7 Nor

ris, 211.

It was held in Dilzer v. Beethoven Association, 13 W. N. C. 165, that a married woman was liable on stock purchased by her before the act of 1879, because she had by her acts assumed the liability, and was estopped from denying it. The same principle is adhered to in Association v. Minnich, 1 Kulp, 513; but contra, Association v. Lyons, 12 Luz. Leg. Reg. 241, 2 Kulp, 409; but in this last case the defendant had made oath that he did not sign the agreement. But suppose no borrower is liable for more than legal interest unless he has signed the prescibed agreement, then we hold that the burden is on the defendant to show that he has not signed it, and this has not been done here. A compliance with the act of 1859 by the association takes off all legal taint of usury where premiums, dues and fines have been exacted. After it has been shown that the charter is lawful, and that a member and stockholder has made a loan under its provisions, he must himself show that he is exempt from liability under its provisions. Association v. Young, 9 W. N. C. 251. Again, the defendant has not shown clearly and affirmatively that he has paid the loan with interest. He has only shown payments on account, and it

may be presumed that they were applied on fines and dues before the confession of judgment on the scire facias. Selden v. Association, 32 Smith, 336. Association v. Association, 10 Wright, 493. We cannot, at all events, go back of the confession of judgment on the amicable scire facias, for that is as binding on the parties as the verdict of a jury. Hopkins v. West, 2 Norris, 109. We may admit that the Court of Common Pleas may open a judgment confessed on revival, and allow a defendant to show usury (Walter v. Breisch, 5 Norris, 457), but it is assuming the whole question to say that there has been any usury here. At any rate, this court cannot, on the distribution of a fund, inquire into the validity of the judgment presented on the ground of usury. Edwards' Appeal, 16 Smith, 89; Rutherford v. Boyer, 3 Norris, 347; Trust Co. v. Roseberry, 31 Smith, 309.

The exception in this case is therefore dismissed, and the report of audit confirmed.

W. S. McLean, attorney, for plaintiff.

M. E. Walker, contra.

Court of Common Pleas of Armstrong County.

HILTY V. GUTHRIE.

A plaintiff, who appealed from an award of arbitrators in her favor, and obtained a verdict for the same sum, is entitled to full costs.

Henshaw v. Seiler, 2 Pearson, 113, not followed.

The opinion of the court was delivered by

BREDIN, J.-In this case, assumpsit for breach of promise to marry, plaintiff appealed from an award of arbitrators in her favor for $500, and obtained a verdict for the same sum. The defendant moves that judgment be entered without costs, contending, under authority of Henshaw v. Seiler, 2 Pearson, 113, that in such a case each party must pay his or her own costs.

This case is governed by Wible v. Buford, error from this. county, decided at November term, 1859, of the Supreme Court.

The abstract of opinion in 7 Pittsburgh Legal Journal, 188, is: "Where a plaintiff obtains an award in his favor, and on appeal taken by him, recovers a verdict for the same amount, he is entitled to full costs, our law having no special provision for the exact case, it follows the rule of the statute of Gloucester, 10 Barr, 180; 10 Harris, 298."

The case of Wible v. Buford does not seem to have been called to Judge Pearson's attention, and his view of the statute of Gloucester seems to differ from that of the Supreme Court.

Motion refused, and judgment is directed to be entered on verdict with full costs.

Orphans' Court of Luzerne County.

DRAKE'S ESTATE.

1. The direction to pay over to a grandson at his arrival at the age of twenty-two years "the annual income and proceeds of any accumulations thereof" does not limit the gift to the interest upon the interest. What is meant is, the income and proceeds of the residuary estate, and of the accumulations, if any, which were authorized to be made during his minority.

2. A testamentary power to lease mineral lands when properly exercised puts the property and its rents on the same footing as if the testator had leased it or opened the mine himself. While the logic is that a coal lease is a sale of the coal in place, and consequently a sale of the corpus, the legal conclusion is that where a testator authorizes his trustees to lease coal land, and they do lease it, the rents will pass under a devise of the income and proceeds of the land.

Petition of William Drake Loomis.

The opinion of the court was delivered February 23, 1884, by RHONE, P. J.-The trustee of this estate is called upon by the petitioner to account and pay over to him certain coal rents. The trustee answers that the petitioner is not entitled to the rents, and this demands of us a construction of the decedent's will. Something was said on the argument about the meaning of the phrase," The annnal income and proceeds of any accumulations thereof," as found in the 6th section of the will. We think it too clear for serious argument that the petitioner is entitled for life to the annual income and proceeds of the whole residuary estate, and that he is not limited to the mere interest on the accumulations thereof. The single clause of the will

which admits of any double reading is the one quoted, and when read in connection with the rest of the instrument must be held to have reference solely to the only accumulations provided for, to wit: during the period prior to the time when the petitioner should arrive at the age of twenty-two years. We cannot read this clause as if it were written: the trustees shall then pay over to the grandson the annual income and the proceeds of any accumulations thereof-nor the annual income and proceeds or any accumulations thereof; neither may it be read precisely as written and make sense without reference to the other parts of the will. The intention obviously is to give the grandson the income and proceeds of her residuary estate and of those accumulations, if any, which she had just provided should be made during his minority. If the grandson is to have the annual income and proceeds of the estate, there can be no accumulations, and if the whole annual income and proceeds of the estate is to be accumulated-capitalized-then he gets nothing. To be more liberal, the term interest, and not income and proceeds, would express the idea of the product of capital. Again, the personal estate, which consists of money, bonds and stocks, is already capitalized, so that, according to the literal meaning of the phrase in question, this principal legatee can only get the interest on the interest.

Assuming, then, that the grandson is to have the entire income of the estate, we arrive at the main question in dispute, which may be presented as follows: In the 6th section of the will, the testatrix makes these provisions for the disposition of the residuary estate: "I do give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, and mixed (subject to certain immaterial charges), unto Eliza J. Perry and A. J. Pringle, or their successors, in trust, nevertheless, to and for the use, property, and benefit of my said grandson.

The following clauses provide that the trustees shall apply the annual income and proceeds of the estate to the repairs, benefit, and improvement of the estate, and as far as may be necessary to the support, maintenance, and advancement in life of the said grandson until he attain the age of twenty-two years, "and upon the arrival of my said grandson at the age of twenty-two years,