ceptions be filed within a given time. The court correctly held the power still rests with the court of quarter sessions, where the constitution placed it. Judgment affirmed.

SUPERVISORS OF SAUCON TP. v. BROADHEAD. (Two Cases.)

(Supreme Court of Pennsylvania. March 21, 1887.)

1. CERTIORARI-TO QUARTER SESSIONS-LIMITATION-HIGHWAYS.

In Pennsylvania, a certiorari to the court of quarter sessions in a road case cannot issue after more than two years have elapsed since the confirmation of the report of the viewers.

2. ERROR, WRIT OF-ISSUANCE.

An order of court making absolute a rule for an alternative mandamus is not such final judgment from which a writ of error may be taken.

Certiorari to quarter sessions, Northampton county.

This was a petition for appointment of viewers, whose report was presented and confirmed absolutely September 1, 1884. On July 27, 1885, the court discharged a rule taken to strike off the confirmation of the report. This writ of certiorari was taken February 12, 1887

The other case was a writ of error to the common pleas, Northampton county. On August 10, 1885, the petition of Charles Broadhead for a rule to show cause why an alternative writ of mandamus should not be issued was filed. On December, 1885, an answer was filed, and on January 24, 1887, the rule was made absolute, and the writ issued. On February 12, 1887, this writ of error was taken.

A. S. Knech, for plaintiffs in error.

A

Plaintiffs in error were entitled to two years after the dismissal of the rule to strike off the confirmation of the report within which to take a writ of certiorari. Art April 1, 1874, (Purd. Dig. 702, pl. 2;) Act March 16, 1868, (Purd. Dig. 704, pl. 8;) Appeal of Central R. of N. J., 102 Pa. St. 38. final decree is that which ends a case. Act 1868; Hilbish v. Catherman, 60 Pa. St. 444. The decree of January 24, 1887, was final. J. Davis Brodhead, for defendant in error

Eighth street was opened to the public in May, 1885, for two squares. The land occupied by the street was taken entirely from the land of the defendants in error, and had been in their and their father's sole use and occupation since 1839. On the death of the father, in 1869, it was accepted in proceedings in partition by the eldest son, John Rinek, and on the same day that he received title, or within a few days after, one-third interests were conveyed to Henry Rinek and Thomas Rinek. They held it as tenants in common since March, 1869, to the day the street was opened. On the trial the defendant claimed that a reference to this Eighth street in a deed conveying property on Ferry street, and north of the intervening street, Spruce street, was a dedication of the land south of Spruce street, from Spruce to Ferry. Verdict and judgment for plaintiffs, $2,482.54; whereupon defendant took this writ.

St. 318; School-District of Dennison v. Padden, 89 Pa. St. 395. The directors may dismiss a teacher. Burton v. Fulton, 49 Pa. St. 151,

H. Wilson and W. H. Dimmick, for defendant in error.

Plaintiff was regarded by everybody as the regularly employed teacher for the term. The minutes are neither the only nor the best evidence of the action of the board. School Directors v. McBride, 22 Pa. St. 218. Grantinga valid contract, it was properly left to the jury to find whether it was for four months or for seven.

STERRETT, J. If we adhere to the principle recognized in Cascade SchoolDist. v. Lewis School-Dist., 45 Pa. St. 318, and the construction heretofore given to the act of April 11, 1862, in Dennison School-Dist. v. Padden, 89 Pa. St. 395, and other cases, it is very clear that plaintiff below failed to sustain her claim for damages against the school-district defendant for refusing to permit her to teach during the last three months of the school year 1883-84. Her contention was that she had been duly appointed teacher of the GlassFactory school for the full term of seven months, and after serving four months, for which she was paid, the school board unjustly refused to permit her to teach any longer. The refusal of the board to retain her as a teacher after the expiration of the first four months was not controverted, but it was denied that she had ever been employed for the last three months. It was therefore incumbent on her to prove that she had been so employed; and for that purpose testimony, consisting chiefly of loose declarations of members of the school board, was introduced and submitted to the jury. It is unnecessary to refer specially to the testimony on which she relied. There was nothing on the minutes of the school board to show that she had been duly appointed teacher for the three months in question. Tested by the ruling of this court in Dennison School-Dist. v. Padden, supra, the evidence, bearing on the controlling question of fact in issue, was wholly insufficient to warrant the jury in finding any such contract as that alleged by plaintiff below; and defendant's third point for charge, viz., "Under all the evidence in the case the verdict must be for defendant," should have been affirmed.

The act of 1862 (Purd. 242, pl. 36) declares: "No tax for school or building purposes shall be levied, no resolution shall be adopted for the purchase or sale of any school real estate, no school-house shall be located, or its location abandoned or changed, no teacher shall be appointed or dismissed," etc., "except by the affirmative votes of a majority of the whole number of directors or controllers thereof; and in each of said cases the names of the members voting, both in the affirmative and negative, shall be so entered on the minutes of the board by the secretary," etc. In the case last cited, we held, for reasons stated in the opinion of our brother Gordon, that in the selection of school-teachers the provisions of this act must be strictly complied with, and we are not disposed to recede from that position. They are wise and wholesome provisions, intended to correct gross abuses which had gradually crept into the administration of our school system, and hence it is not requiring too much to insist on a substantial compliance with the spirit, if not the very letter, of the act.

It is unnecessary to notice the assignments of error separately. The vice that pervaded the trial was-First, the admission of testimony which, in view of the express requirements of the statute, was irrelevant and incompetent; and, second, the submission of the case to the jury upon incompetent and insufficient evidence, and under instructions which practically permitted them to guess at what may have been the unrecorded action or intention of the respective members of the school board in regard to the employment of plaintiff below. Judgment reversed.

v.9a.no.1-5

GUARANTEE TRUST & SAFE DEPOSIT CO.'S APPEAL.1
(Supreme Court of Pennsylvania. April 4, 1887.)

1. TRUST-COMPENSATION OF TRUSTEES-COMMISSIONS.

:

Commissions to trustees are payable upon income, and can be awarded upon the principal, if at all, only upon the final settlement of the estate.

2. SAME-INVALID APPOINTMENT.

Where a trustee has been appointed under the Pennsylvania act of May 1, 1861, (Purd. Dig. 560, 561,) which authorizes the court to remove a delinquent trustee, and appoint a trustee in his place, he is entitled to commissions, even though his appointment has, under the act of April 9, 1868, which relates to the city of Philadelphia, and gives the cestuis que trust the right to choose trustees to execute the trust, been set aside on the ground that a cestui que trust was not consulted in regard to the appointment.

Appeal of the Guarantee Trust & Safe Deposit Company from the decree of the orphans' court, Philadelphia county, sustaining exceptions to the adjudication of the account of appellant as trustee of the estate of William G. Mintzer, deceased. The facts are fully stated in the following adjudication of PENROSE, J.:

what

"The accountant was appointed trustee upon the petition of George W. Mintzer, October 19, 1883. Alexander Thackara, the surviving trustee under the will of the testator, had embezzled a large portion of the assets of the trustestate, and had absconded. The preservation of what was left required prompt action; and the appointment was made under the provisions of the act of May 1, 1861, (Purd. Dig. 560, 561,) relating to the removal of delinquent trustees; which permit the court, or the judges in vacation, if the case shall require dispatch, to remove such trustee, and appoint some suitable person to discharge such trust, upon such security as the court may require, and shall moreover order and compel such trustee to deliver over and pay to his successor all and every the goods, chattels, and property, money estate, or effects in hands. Nearly six months after this, a petition was presented by Sarah A. Lancaster, one of the persons entitled to receive the income of the estate for life, asking that the appointment so made should be revoked, on the ground that she had not been consulted with regard to it, and had not joined in the petition. The court, being of opinion that the joinder of all parties in interest was unnecessary under the act of 1861, since to require it might in many cases defeat the object of the act, and being of opinion moreover, that the assent of the parties, if required, might be inferred from their acquiescence for so long a period after the appointment was made, refused to vacate it; especially as George W. Mintzer, at whose instance the appointment was made, and Mary D. Mintzer, who concurred in it, constituted a majority of the tenants for life. The supreme court, however, upon appeal, not regarding the fact just stated, decided that under the act of April 9, 1868, relating to the city of Philadelphia, which gives to the cestuis que trust, or a majority of them, having the life-estate, the right to choose or elect trustees to execute the trust, an appointment without notice to all of the parties in interest was improper, and the decree by which it was made was, on the fifteenth of February, 1886, reversed, the appellee being directed to pay the costs out of the trust money in its hands.

"After this, upon the petition of the majority of the persons entitled in the income of the estate, the court appointed the Fidelity Trust Company; and, the functions of the accountant having thus ceased, the present account, showing the administration of the trust-estate by it, has been filed. The account was admitted to be correct, except as to the charge of commissions on income collected after the appointment of the Fidelity Trust Company, and the charge of commissions on principal.

1 Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

"The exception to the commissions on income collected after the appointment of the present trustee falls in consequence of an agreement that the balance of income, shown by the account and collected since it was filed, should be awarded directly to the persons entitled under will of the testator, without passing into the hands of the new trustee. The commissions on principal were excepted to First, because the appointment of the accountant had been revoked by the supreme court; and, second, because the rate charged was excessive.

"As to the first ground of objection, it was contended by Mr. Scanlan that the appointment, having been decided by the court of final resort to have been improperly made, must be regarded as void ab initio. The illegality was simply declared by the court, but it existed from the outset; and the person or corporation assuming to act by virtue of such appointment is to be treated as a trustee de son tort, entitled, of course, to no commissions, or any advantage arising from its own wrong. The argument is a plausible one, but the answer is that given by Mr. Hanson: The decree of a court of competent jurisdiction is valid until reversed or set aside, and persons acting in pursuance of it are entitled to its protection. Any other doctrine would paralyze the inferior courts, and make their decrees inoperative until they had passed in review before the highest court. See Menges v. Dentler, 33 Pa. St. 495; Geddes v. Brown, 5 Phila. 180.

"The only remaining question, therefore, is as to the rate of commission upon principal. Accountant has charged 3 per cent. upon the principal of the general estate, and 2 per cent. upon that part belonging to the trust for Mary D. Chester. From the testimony of Mr. Winship, with regard to the services rendered by the accountant, it appears that some of them were before the appointment of trustee, and while the company was acting as guardian. These cover the period from June 9, 1883, to October 16, 1883. Of the remaining services, many of them related to the income of the estate, and cannot be considered in fixing the amount of compensation to be allowed from principal. The trouble with regard to the collection of the estate devolved chiefly upon counsel, to whom an allowance therefor was made by the adjudication of the former account.

"It was said in Spangler's Estate, 21 Pa. St. 335, that the compensation of trustees must, ordinarily, come out of the income of the fund. This, however, is not a fixed rule, and the principal will be made liable where the income is inadequate; as in Biddle's Appeal, 83 Pa. St. 344; Twaddell's Appeal, *81 Pa. St. 221; Lukens' Appeal, 47 Pa. St. 356.

"But the rate of compensation as a trustee is not that allowed an executor or administrator, whose duty requires the disbursement as well as the collection and care of the funds of the estate. A trustee, too, has not the same responsibility as an executor. The estate, usually, is already invested, and changes cannot be made without the permission of the court. See Bayard v. Bank, 52 Pa. St. 232. In Twaddell's Appeal, for care of real estate converted by the terms of the will, but taken by the parties in interest as land, worth at least $100,000, and under the charge of the trustee for over 15 years, the allowance was $1,000, or 1 per cent. In Biddle's Appeal, the estate was valued at $204,000, and the allowance for taking care of it for 19 years was $2,000, a little less than 1 per cent. In Lukens' Appeal 14 per cent. was allowed, the amount of the estate not being stated by the reporter. The allowance asked for in Biddle's Appeal was 3 per cent. upon the value of the trust-estate, but the auditing judge, (O'BRIEN, J.,) whose action in this respect was sustained by the supreme court, fixed it at the sum above mentioned.

"In the present case the total principal included in the account is $44,214, some part of which, though how much does not appear, had to be invested by the accountant; and in view of the authorities referred to, and under al