seduction of any unmarried woman of "previously chaste character," that phrase refers to moral qualities, and not to reputation. State v. Prizer, 49 Iowa, 531; S. C., 31 Am. Rep. 155.

Notes, bills, etc., representing money loaned on interest by a corporation, are "property" liable to taxation. City of New Orleans v. Mechanics and Traders' Pas. Co., 30 La. Ann. 876; S. C., 31 Am. Rep. 232; Williamson v. Harris, 57 Ala. 40; S. C., 29 Am. Rep. 707.

A railroad depot is a "warehouse," within the statute of burglary. State v. Bishop, 51 Vt. 287; S. C., 31 Am. Rep. 287.

We have seen that a Sunday-school is not "Divine worship;" but a building for the sessions of a Sunday-school and religious lectures is for a "religious purpose," although occasionally used for fairs and other benevolent purposes. Craig v. First Presbyterian Church of Pittsburgh, 88 Penn. St. 42; S. C., 32 Am. Rep. 417. The court said: "The Sunday-school rooms and the lecture-room of a modern church are as essentially used for religious purposes as the body of the church building itself. The Sabbath-schools are an important auxiliary of every Christian church, and indispensable to its life and growth. That the services in such schools are in the main of a religious character is too well known to be seriously disputed. So of the lectureroom. It is used for the mid-week evening lectures and other services, when the attendance is not large. The expense of lighting and heating the main church building is thus avoided. But the services upon such occasions are as truly religious in their character as the sermon upon the Sabbath. Gass' Appeal, 23 P. F. Smith, 46; S. C., 13 Am. Rep. 726, has no application to the point in controversy. There, a German Reformed congregation and a Lutheran congregation built a church together, in which, by their articles of association, 'Divine service' only was to be held; for many years there was no meeting in it except for public worship. It was held, under the facts of that case, that

Sabbath-schools' were not included in the term 'Divine service,' and upon a bill filed to prevent the continued and unauthorized use of the audience room for Sunday-schools, this court, overruling the court below, granted an injunction. The distinction taken in that case between 'Divine service' and 'Sabbath-school services' was manifestly proper. Says Agnew, J.: 'That prayer and praise, and indeed, oral as well as written instruction in religious matters by laymen, are used in Sundayschool service is true, and in a general sense it may be said to be Divine service. * * * But in its more restricted sense it is used to signify acts of religious worship.' In view of the contract between the two churches, the term was confined to its restricted sense. In the case in hand the act of assembly uses the words 'religious purposes,' a term of much wider meaning, and clearly embracing Sabbath-schools and the ordinary lecture services of a church. Nor do we think it detracts from the character of the occupancy of the building, that it is proposed to use the lecture-room occasionally for

social gatherings incident to the church, for socie| ties for benevolent objects, and for fairs held by the ladies to raise funds for missionary work; nor that it is proposed to sometimes furnish a 'plain tea' to those members who attend evening service from a distance. The body needs food as well as the soul. If the church requires the building for its Sabbathschools and for a lecture-room, and such purposes are religious in their nature, as we have endeavored to show, of what possible matter can it be should the church utilize said building by applying it to other collateral objects, not in themselves technically religious, yet germane to the general purpose? And if by such means an income is derived therefrom, there is no violation of either law or morals." A citizen and resident of one State, charged in a requisition with the constructive commission of crime in another State, from which in fact he has never fled, is not “a fugitive from justice." Jones v. Leonard, 50 Iowa, 106; 32 Am. Rep. 116.

A supervising architect is a person performing "labor," although not a "laborer," within the meaning of the mechanics' lien law. Stryker v. Cassidy, 76 N. Y. 50; S. C., 32 Am. Rep. 262. See 21 Alb. L. J. 405.

A widow, keeping a boarding-house, with a female friend residing with her, and female servants, besides the boarders, is the "head of a family." Race v. Oldridge, 90 Ill. 250; S. C., 32 Am. Rep. 27. But a single man, who keeps house and has no other person living with him than servants and employees, is not the "head of a family" or a "householder." Calhoun v. Williams, 32 Gratt. 18. And an unmarried man, who does not keep house, but supports his mother and his unmarried sister, who board with his married sister in another town, is not the "head of a family." Jones v. Gray, 3 Woods, 494. One who has received an injury on the head in childhood, resulting in hardening of the brain, and a weakening of the mental powers in mature age, continuing and increasing till death, and necessitating confinement in an asylum for quiet and treatment, is not afflicted with "insanity," within the meaning of an application for life insurance, it appearing that he knew what was going on, and it not appearing that he was subject to delusions or acted irrationally. Newton v. Mutual Benefit Life Ins. Co., 76 N. Y. 426; S. C., 32 Am. Rep. 335.

A bazaar, owned by a city, and exclusively used for the sale of merchandise other than comestibles, is not å "market," exempt from sale under execution. New Orleans v. Morris, 3 Woods, 103.

Where a policy of insurance provides that no action shall be brought thereon until an award is made fixing the amount of the claim, and no recovery shall be had unless the action shall be commenced within twelve months next after the loss shall "occur," the action must be brought within twelve months after the destruction of the property by fire. It does not mean within twelve months after the award. Johnson v. Humboldt Ins. Co., 91 Ill. 92. Exactly the contrary was held in Hay v. Star Fire Ins. Co., 77 N. Y. 235. In that case the court held Occur "to be equivalent to "accrue." See Mayor v. Hamilton Fire Ins. Co., 39 N. Y. 46.

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upon the ground that in Tilden v. Blair, although the acceptance was made payable in New York by the acceptors who were residents of New York, yet after baving accepted in New York, they returned the acceptance to the drawer in Illinois for the purpose and with the intention that it should be negotiated by him in that State. And this court says in its opinion in Dickinson v. Edwards, that that was the controlling fact in Tilden v. Blair, and that the ruling consideration was the intention of the acceptors that the draft should be used in Illinois, while in Jewell v. Wright and in the case then before the court, there was nothing to show an intent on the part of the maker of the note to give authority to deal with it otherwise than as the law of this State would allow.

The case of Bank of Georgia v. Lewin, 45 Barb. 340, and other cases are distinguished from Jewell v. Wright on the same ground, and it may safely be said that the case of Dickinson v. Edwards rests upon the ground that there was no evidence of knowledge or intention on the part of the maker of the note that it was to be used out of this State, and that in the absence of such proof it must be governed by the law of the place of payment.

In the present case, the fact which was wanting in Jewell v. Wright and Dickinson v. Edwards clearly appears, and the case is brought within the principle of Tilden v. Blair, and the cases which have followed it. The note now in suit was dated and made payable in New York, but it was made for the express purpose of being used in renewal of another note for the same amount then held by the plaintiff in bank in Pennsyl

by defendant signed was an execution of this completed agreement. He says he sent the check under a previous agreement. The appellant seeks on this appeal to set up a defense to the note in suit on the ground that the original $10,000 note was an accommodation note, and was discounted in violation of the agreement under which it was loaned, and that the plaintiff did not give full value for it, $2.000 of the proceeds of the discount having been applied to the payment of a precedent debt of the indorser. It is sufficient to say that the alleged facts on which this defense is based are not found by the referee nor requested to be found, but that, on the contrary, the referee found that the $10,000 note was discounted by the plaintiff for value in the ordinary course of business, and no exception was taken to this finding.

The judgment should be affirmed.
All concur.

CONDITIONS IN DEEDS RESTRICTING ALIENATION.

IOWA SUPREME COURT, SEPT. 21, 1880.

MCCLEARY V. ELLIS.

A. conveyed land to J. for life and after J.'s death to J.'s children. If J. should leave no children the land should go to G. and his children. Tho deed provided that the land should not be alienated by J. nor be sold for debts. Held, that the condition against alienation and liability for debts was void.

sylvania, in the form in use in that State, by the cashier of the plaintiff at the defendant's request, and forwarded by the cashier to the defendant for signature, and was sigued by the defendant in New York and then mailed by him to the plaintiff in Pennsylvania, together with a check for the discount at the rate of eight per cent per annum which was lawful in Pennsylvania. The note and interest were consequently received by the plaintiff in Pennsylvania, and all this was done in performance of a previous agreement which had been entered into in Pennsylvania between the plaintiff and the defendant. All that was done by the plaintiff in New York was simply in execution of that agreement, and as is said in Dickinson v. Edwards (p. 580), in citing Tilden v. Blair, the designation of the place of payment of the note was an incidental circumstance for the convenience of the maker, and not an essential part of the contract, or with the intent to affix a legal consequence to the instrument. It cannot be contended that a party who goes into another State and there makes an agreement with a citizen of that State for the loan or forbearance of money lawful by the laws of that State, can render his obligation void by making it payable in another State, according to whose laws the contract would be usurious: Neither can it be claimed that where the obligation, instead of being signed in the State where the contract was made, is signed in another State and sent by mail to the place of the contract, it must be governed by the usury laws of the place where it was sigued. The counsel for the appellant disputes the fact that the agreement for the giving of the note in suit in renewal of the $2,000 note which fell due was made in Pennsylvania, but the findings and evidence clearly show that it was. The proposition for the renewal was made by the defendant at Honesdale in writing, and there received by the plaintiff. In this proposition defendant requested plaintiff's cashier to send defendant a new note to be signed, which the cashier did. The mailing of the new note by the cashier to Middletown was a clear and definite acceptance of the proposition, and made the agreement to renew complete. The sending of the note and check

the defendants as sheriff, who had sold, under execution against plaintiff, plaintiff's interest in certain land conveyed to him by his father, to restrain such defendant from executing to the purchaser at the sale, another defendant, a sheriff's deed. Plaintiff claimed in his petition that by a condition in his father's deed to him, the land could not be alienated and was not liable to be sold for his debts. To the petition defendants demurred, but the purchaser offered to release from the operation of the sale the homestead to which plaintiff was entitled by law. The court below sustained the demurrer, from which plaintiff appealed. The deed to plaintiff reads as follows: "Know all men by these presents: That I, Alvam McCleary, of the county of Louisa, of the State of Iowa, do give my son John McCleary, all my interest in the following lands: * To have the above-described lands his life-time and to go to his children at his death; but if he dies without children, then the above-described land to go to his brother, George McCleary, and at his death to go to his brother's children - that is, George McCleary's children; but if George dies without children, it is to go to his sister's children. It is expressly understood that he shall not part with it, nor sell it, nor shall any person sell it for him, or for debts whatsoever." The deed described 190 acres.

* * * * *

Hoffman, Pickler & Brown, for appellant.

Tatlock & Wilson, for appellee.

DAY, J. 1. From an examination of the deed of Alvam McCleary, it is evident that it conveyed a feesimple estate. The conveyanco is of a life estate to John McCleary, the remainder to his children; but if he should die without children, to his brother George and his children, and if George should die without children the remainder to his sister's children. The conveyance is of a life estate and a vested remainder 4 Kent's Com. 203. No reversionary interest is retained in the grantor. He has disposed of his entire estate in fee. The disposition of the estate is to the beneficiary direct, without the intervention of trustees. The question in this case is, can the grantor of the

in fee.

fee impose restraints upon alienation? Littleton, in section 360, states the doctrine upon this subject as follows: "If a feoffment be made upon the condition that the feoffer shall not alien the land to any one, this condition is void: because when a man is enfeoffed of lands or tenements, he hath power to alien them to any person by the law. For if such condition should be good, then the condition should oust him of all the power which the law gives him, which should be against reason, and therefore such a condition is void." Commenting upon this Lord Coke says: "And the like law is of a devise in fee, upon condition that the devisee shall not alien, the condition is void; and so it is of a grant, release, confirmation, or any other conveyance whereby a fee simple doth pass. For it is absurd and repugnant to reason that he that hath no possibility to have the land revert to him should restrain his feoffee in fee simple of all power to alien. And so it is if a man be possessed of a lease for years, or of a horse, or any other chattel, real or personal, and give or sell his whole interest and property therein upon condition that the donee or vendee shall not alien the same, the same is void; because his whole interest and property is out of him, so as he hath no possibility of a revester, and it is against trade and traffic, and bargaining and contracting between man and man; and it is within the reason of our author that it should ouster him of all power given to him." Coke Litt. 223a.

The case of Mandelbaum v. McDonnell, 29 Mich. 78, contains a very elaborate and exhaustive consideration of this question. In that case a devise for life was made to the widow of the testator, remainder in fee to his sons and grandson, with a restriction upon alienation during the life of the widow, if she remained unmarried, and until the grandson, who was then four years old, should attain the age of 25. The restriction upon the right of alienation was held void. In announcing the opinion of the court, Christiancy, J., employs this language: "If there is any English decision since the statuto quia emptores, where the point was involved in which it was held competent for a feoffer, grantor or devisor of a vested estate in fee simple, whether in remainder or possession, by any condition or restriction in the instrument creating it, to suspend all power of the feofee, grantee, or devisee, otherwise competent to sell, for a single day, I have not been able to find it, and the able counsel for the defendants, whose research nothing of this kind is likely to escape, seem to have been equally unsuccessful." And further: "We are entirely satisfied there has never been a time since the statute quia emptores when a restriction in a conveyance of a vested estate, in fee simple, in possession, or remainder, against selling for a particular period of time, was valid by the common law, and we think it would be unwise and injurious to admit into the law the principle contended for by the defendant's counsel, that such restrictions should be held valid if imposed only for a reasonable time." "It is safe to say that every estate depending upon such a question would, by the very fact of such a question existing, lose a large share of its market value. say whether the time is reasonable until the question has been settled in the court of last resort? And upon what standard of certainty can the court decide it? Or depending as it must upon all the peculiar facts and circumstances of each particular case, is the question to be submitted to a jury? The only safe rule of decision is to hold, as I understand the common law for ages to have been, that a condition or restriction which would suspend all power of alienation for a single day is inconsistent with the estate granted, unreasonable and void."

Who can

For another case containing a most exhaustive consideration of this question, see De Peyster v. Michael, 6 N. Y. 467. In this case, after a very full review of the authorities upon page 497, it is said: "Upon the

highest legal authority, therefore, it may be affirmed that in a fee simple grant of land a condition that the grantee shall not alien, or that he shall pay a sum of money to the grantor upon alienation, is void, upon the ground that it is repugnant to the estate granted." In Bradley v. Bixote, 3 Ves. Jr., it is said: "I have looked into the cases that have been mentioned, and find it laid down as a rule, long ago established, that where there is a gift with a condition inconsistent with and repugnant to such gift, the condition is wholly void. A condition that the tenant in fee shall not alien is repugnant." See, also, Brandon v. Robinson, 18 Ves. Jr. 429; McCullough v. Gillmore, 11 Penn. St. 370.

In Walter v. Vincent, 18 Penn. St. 369, a testator devised to his daughter and to her legal heirs forever certain real estate, with the express consideration that she should "not alien or dispose of the same, or join with her husband in any deed for the conveyance thereof during her natural life." The court held the consideration void, and that a fee simple estate was devised, and say: "It makes no difference that the testator has expressly withheld one of the rights essential to a fee simple, for the law does not allow an estate to be granted to a man and his heirs with a restraint on alienation, and frustrates the most clear intention to impose such a restraint; just as it allowed alienation of an estate entail, though a contrary intent is manifest. And it would be exceedingly improper, in any court, in construing a devise to a man and his heirs, to give effect to the restraint upon alienation by changing the character of the estate to a life estate, with a remainder annexed to it, or with an executory devise over." In Hall v. Tufts, 18 Pick. 455, testator devised certain real estate "to his wife for her life, and tho remainder of the estate, whether real or personal, in possession or reversion, to his five children, to be equally divided among them or their heirs, respectively; always intending and meaning that none of his children shall dispose of their part of the real estate in reversion before it is legally assigned to them." It was held that the children took a vested remainder in the real estate given to the wife for her life, and that the clause restraining them from aliening the same before the expiration of the life estato was void.

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The case of Blackstone Bank v. Davis, 21 Pick. 42, is exactly in point. In that case one Davis devised to his son the use of a farm of 120 acres, with a provision that the land should not be subject or liable to conveyance or attachment. The plaintiffs recovered a judgment against the devisee, and levied an execution upon the premises as upon land held by the defendant in fee. The court says: By the devise of the profits, use, or occupation of the land, the land itself is devised. Whether the defendant took an estate in fee or for life only is a question not material in the present case. The sole question is whether the estate in his hauds was liable to attachment, and to be taken in execution as his property. The plaintiffs claim title under the levy of an execution against the defendant, and their title is valid if the estate was liable to be so taken. That it was so liable, notwithstanding the proviso or condition in the will, the court cannot entertain a doubt."

The appellant cites and relies solely upon Nichols v. Eaton, 91 U. S. 716. In that case the testator devised her real estate to trustees upon trusts to pay the rents, profits, and interest to her four children, with a proviso that if any of her sons should alienate or dispose of the income, or if by means of bankruptcy or insolvency, or any other means, said income could not be personally enjoyed by them respectively, but would become vested in or payable to some other person, then the trust expressed in said will concerning so much thereof as would so vest should immediately cease and determine. The case differs from the present one in two

essential and controlling particulars-First, the estate was devised to trustees and never vested in the beneficiaries; second, the enjoyment of the benefits of the devise was made to depend upon a condition. We have no hesitancy in holding, in view of the authorities above quoted, and others that might be referred to, that the conditions in this deed against alienage and liability for debts are void.

2. It is insisted, however, that whatever view may be taken of the foregoing question, still the demurrer should have been overruled, because the petition alleges that a part of the land was the homestead of the plaintiff and his family, and the execution and return notice of sale, and sheriff's certificate, all show that no part of the land was set apart to plaintiff as a homestead, as by statute required, but that the whole 130 acres were sold in a lump and bought by the defendant. It is insisted this renders the sale absolutely void under Linscott v. Lamart, 46 Iowa, 312, and White v. Rouly, id. 680. The petition, we think, does not base the plaintiff's right to relief upon the ground that a portion of the premises was his homestead, and not set apart to him as prescribed in the statute. The petition does not allege that a portion of the land is plaintiff's homestead, but incidentally it is alleged that he has gone into possession of the whole real estate, and occupied the same, which embraced 130 acres as his homestead.

It is not alleged when he took possession nor does it appear when the debt was contracted. For aught that the petition shows, the homestead was liable for this debt. No complaint was made in the petition that it was not set off to the plaintiff, nor that the other property was not first exhausted. The ground upon which relief is asked, is that the plaintiff owned no interest in the land subject to execution. The demurrer was properly sustained.

Inasmuch as the defendant offered to release from the operation of the sheriff's sale the homestead of the plaintiffs, they may, if they are so advised, have a decree granting them that relief.

Henry C. Terry, for defendant in error.

STERRETT, J. The Olive Cemetery Company was incorporated by act of February 5, 1849, for the purpose of establishing and maintaining a cemetery on a certain tract of land, situated on the north side of Lancaster avenue, in the county, now city, of Philadelphia, containing about ten acres and twenty-two perches. The third section of the act declares: "That no street, lane or road shall hereafter be opened through the said tract, occupied as a cemetery, without the consent of the majority of the lot-holders, and the

same, when used as a place of sepulture, shall be ex empt from taxation, excepting for State purposes, and no lot which may be purchased as a place of sepulture, shall be subject to attachment or execution for any debt or debts of the owner thereof, provided, that the said exemption from attachment or execution shall not extend to more than four lots as owned by any one individual." On the line of Merion avenue, by which the cemetery is bounded on one side, all the lots have been sold and mostly used for burial purposes. In that avenue the corporate authorities of the city caused a sewer to be constructed, and filed a lien for a proportionate part of the cost thereof against the entire cemetery tract, including the lots that have been sold, and claim the right to enforce payment thereof by sale of the land. The facts are fully presented in the case stated in the nature of a special verdict, and the questions of law involved submitted to the court below in the following terms: "If the court shall be of opinion that under the said charter the lots purchased by the lot-holders for burial purposes and the lands of the cemetery company are subject to lien and sale under the said lien, or that the lot-owners' consent, or notice to them, was not necessary before filing the lien, then judgment for the plaintiff; but if not, then judgment for the defendant." The court entered judgment, on the case stated, in favor of the city.

The main contention on the part of the cemetery company is, that the assessment for construction of the sewer on Merion avenue is a species of taxation, and clearly within the letter as well as the spirit of the exemption contained in the charter. The exemption is "from taxation, excepting for State purposes." The obvious meaning of this is, that the Commonwealth releases in favor of the cemetery company her right to tax its lands when used as a place of sepulture, in any form or for any purpose of a local nature, as distinguished from general State purposes, reserving to herself the right of taxation for the latter purposes only. The exemption is general, and embraces every species of taxation not specially excepted; and the rule is well settled that an exception in a statute excludes all other exceptions. Miller v. Kirkpatrick, 5 Casey, 226. It is not pretended that municipal assessments for coustructing sewers, etc., are within the accepted meaning of taxation for State purposes; on the contrary, it is contended by the city, that they do not come under the head of taxation at all. It is conceded, however, that the authority to make and collect such assessments is delegated by the Commonwealth. If it does not emanate from the inherent power of the government to levy and collect taxes, it is difficult to understand whence it comes. The only warrant for delegating such authority must be either in the right of eminent domain or in the taxing power. It cannot be found in the former, and hence it must be in the latter.

Taxation is an exercise of the inherent power of government to compel contributions from persons and property for public purposes, either of a general or local nature. For general or State purposes the power of taxation has usually been exercised directly by the government, while for local objects it has generally been delegated to and exercised by the municipal subdivisions of the State. The history and growth of this delegated power are traced in Washington avenue, 19 P. F. Smith, 352. It is there said that the practice of municipal taxation by counties, turnpikes, cities and boroughs for local objects had its origin in necessity and convenience. Hence, roads, bridges, culverts, sewers, pavements, school-houses, and like local improvements, are best made through the municipal divisions of the State, and paid for by local taxation. "These have always been supported as a proper exercise of the taxing power. * * In cities and towns where the population was dense, the authorities began

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