The children, upon being interrogated by the Court, declared with much feeling their wishes to remain with their mother. There was also some circumstantial evidence that the mother prohibited the children from any intercourse with the father.

Messrs. Reynolds & Rogers for the respondent.-So long as the mother continues to provide for the children as she now does, the Court ought not to interfere. She is their natural guardian, and is preferred to a stranger, and especially when the father has no means, as in this case. He having forfeited his parental rights by his own misconduct, could not delegate to Montgomery the care of his children. The Court will consult and consider the wishes of the children: Commonwealth v. Addicks, 5 Binn. 520.

J. A. Gordon for the relator.-The father is entitled to the custody of his minor children, and where differences exist between the parents, the right of the father is preferred to that of the mother. He is the natural guardian of his children, and in the absence of ill usage, grossly immoral conduct, or want of ability to provide for them, he is entitled to their custody, care and education, and cannot, at common law, be controlled by the Court in the exercise of his parental rights. The common law recognises his right to appoint a testamentary guardian, and although at the time of making such appointment he might not be a suitable person to have the care of his own children, yet the Court would not look beyond the qualifications of the guardian thus appointed. None of the Chancery cases upon this subject touches the present case. In all the cases where custody was refused the father, it was upon the ground of immorality and utter unfitness in him. In this case the father proposes to place his children in the care of a competent person.

It is true that modern decisions have made this kind of cases an appeal to the sound discretion of the Court, yet the Court will not overlook the legal rights of the father, when their enforcement, according to his wishes, will manifestly conduce to the well being of the children: The People v. Gregory, 18 Wend. 637; 19 Id. 16; Burmudez v. Burmudez, 2 Mart. Law 183.

The opinion of the Court was delivered by

BUFFINGTON, P. J.-At the common law the father is entitled

to the custody of his minor children, unless he has forfeited his parental rights by grossly immoral conduct; but in the present case, where there is no illegal restraint of the children, this Court is not bound to decide upon this right. The main question before us is, what is best for the welfare of the children. We are satisfied that the person selected by the father is a suitable one to take charge of these children, and we have not a doubt from the testimony, that their nurture and education would be properly attended to, nor have we any doubt from the evidence before us, that the mother has, up to the present time, performed her whole duty to them; and it is equally plain that the children prefer to remain with their mother. With the wishes and feelings of the parents we have nothing to do, but we cannot disregard the wishes and feelings of the children. They are under no illegal restraint, and under this writ the Court is not bound to enforce the supposed legal rights of the father, in opposition to the manifest wishes of the children. Looking, then, to their welfare, we think, under all the circumstances, that for the present the children should remain with their mother, and that the father have free access to them at all seasonable times, provided he does not visit them when intoxicated; and the mother is admonished to instruct the children to reverence and honor their father in their intercourse with him. The complaint is dismissed.

Com. v. Nutt, 1 Browne 143; M'Gunigal v. Mong, 5 Barr 271; Demott v. The Com., 14 P. F. Smith 302.

In the Supreme Court of Pennsylvania.

KERST v. GINDER.

(Vol. III., p. 389, 1856.)

Where a vendor of land is confessedly unable to make title at the time named in the article of agreement for delivery of the deed, no tender of the purchase-money then due is necessary to enable the vendee to rescind the contract and maintain covenant for the breach.

ERROR to the Common Pleas of Carbon County.

The opinion of the Court was delivered by

KNOX, J.-Kerst, by articles of agreement, dated November 4th, 1850, covenanted to convey to Ginder a house and lot of land by deed in fee simple, free from all encumbrances, on the first day of April, 1851. Ginder was to pay to Kerst $30 in hand; $600 on the first of April, 1851; $12 50 to Mrs. Kerst for signing the deed, and $8 70 on the first of April, 1852. The "hand money" was paid. On the first of April, 1851, (or the 31st of March, which had been substituted by the parties) Ginder, by his attorney, Mr. Struthers, offered to pay the $600 then due, provided Kerst would make a deed in accordance with the terms of the contract. Kerst admitted his inability to do this, as there were encumbrances upon the property in the nature of judgments against him, to an amount greater than the payment then due, which he was unable to satisfy. Various propositions were made to arrange the matter, but none were acceded to. Ginder treated the contract as rescinded, and brought this action of covenant to recover damages for non-performance.

The principal ground of defence upon the trial below was, that there was no legal tender of the money due upon the first of April, 1851; but the judge of the Common Pleas was right in holding that no formal tender was required. The delivery of the deed and the payment of the money were concurrent acts, and when the vendor expressly admitted that he could not convey free from encumbrance there was no necessity for a tender. The vendee proclaimed his willingness to pay upon performance by the other party, and when he was told by the vendor that he could not give him a clear title, his right to rescind the contract and recover damages was unquestionable. The offer to permit the plaintiff to pay the judgments out of the purchase-money evidenced a disposition on behalf of the defendant to comply with his contract so far as he could; but it was not compliance itself, and was no answer to the plaintiff's demand for a conveyance free from liens. The judgments were greater than the instalment then due, and if the plaintiff had accepted the deed, even with the understanding that he was to pay the $600 to the creditors,

he might have been compelled to pay the residue sooner than his contract called for, and besides it would have been a hardship to have compelled him to pay the money to several creditors of the defendant rather than to the defendant himself.

The bills of exception to the evidence disclose no error, and the order of addressing the jury cannot be reversed here.

Judgment affirmed.

In the District Court of Allegheny County.

COMMONWEALTH v. HAYS.

(Vol. IV., p. 445, 1856.)

Debt upon the official bond of the Prothonotary of Allegheny County, to recover an alleged balance due the Commonwealth: held, that, under the Act of March 30, 1811, positive proof that a copy of his account as settled by the Auditor-General had been sent to the defendant by mail or otherwise is not required.

HAMPTON, P. J.-The action is debt on the official bond of defendant, who was Prothonotary of the District Court and Common Pleas for the County of Allegheny, from the first of December, 1849, till first of December, 1852, to recover an alleged balance in his hands due to the Commonwealth.

The facts that he was duly elected, gave bond, was qualified and served for the period above mentioned, were admitted on the trial.

The plaintiff's counsel then gave in evidence the bond of defendant and his sureties, to the Commonwealth, in the sum of $20,000, dated the 21st of November, 1849, duly approved and acknowledged with the conditions required by law. He then offered a certified copy of the defendant's account, as settled by the Auditor-General and State Treasurer on the 9th of March, 1855, showing a balance due by him to the Commonwealth of $9906 51. This account was objected to by the defendant's counsel for various reasons assigned in the bill of exceptions, one of which was, that there was no evidence that the defendant had

notice of the settlement of this account by the Auditor-General, or that a copy thereof, under the hand and seal of the AuditorGeneral, had been sent to the defendant by mail or otherwise, according to the provisions of the Act of Assembly of the 30th March, 1811. The account was admitted under exception, and this question was reserved for further consideration. Here the plaintiff rested.

The defendant's counsel offered certain evidence, which was objected to by plaintiff's counsel, and rejected by the Court, and bill of exceptions sealed. The evidence on both sides having closed, the Court instructed the jury to return a verdict for the plaintiff for the balance appearing to be due by the account, as settled by the Auditor-General and State Treasurer, with interest, given in evidence by the plaintiff's counsel, subject to the opinion of the Court as to the right of the Commonwealth to recover in this action upon the evidence in the cause, without positive proof by the plaintiff that the Auditor-General sent to the defendant, by mail or otherwise, a copy of said account, under his hand and seal of office, according to the provisions of the Act of 30th March, 1811, which question was reserved by the Court. And if the Court should be of opinion that the plaintiff could recover without actual or positive proof of such copy having been sent to the defendant by mail or otherwise, then judgment to be entered on the verdict for the plaintiff. But if the Court should be of opinion that the plaintiff cannot recover without such proof being given, the judgment to be entered for the defendant, non obstante veredicto.

The first section of the Act of 30th March, 1811, provides that, "all accounts between the Commonwealth and any person or persons, body politic or corporate, as well those with the officers of the revenue as other persons intrusted with the receipt of, or who have or may hereafter become possessed of public money, also the accounts of all persons having claims on the Commonwealth, except as hereinafter excepted, shall be examined and adjusted by the Auditor-General, according to law and equity." The ninth section of the same act, under which this question. arises, provides that, "within thirty days after the settlement of an account, agreeably to this act, on which a balance appears to