measure of duty in the case of a municipal corporation in reference to its streets is but ordinary, and the care of those who use them is the same, whilst the standard of the degree of care is to be measured according to the circumstances."

In view of the testimony, affirmance of the defendant's second and eighth points would have been error. As abstract propositions the third and fourth points might have been affirmed, but with reference to the testimony, the court properly ruled that they depended on the answer to the second point. Under the charge the jury must have found that the street was unsafe to walk on, else the verdict would have been for defendant. Whether it was daylight or dark, the plaintiff was not guilty of negligence in taking the unsafe walk when it could not be avoided by taking a safe one. That it was dark was a fact to be considered. Had it been daylight it is unlikely that the plaintiff would have been injured. He says he thought he had passed the dangerous places before he fell. The risk was greater in the night than in the day, but that is no reason why he should have taken an unsafe and dangerous way of which he had less knowledge.

Judgment affirmed.

GORDON and PAXTON, JJ., dissent.

BROWN V. FOWZER

November 1, 1886.

BOROUGH - DIVISION OF, INTO WARDS ORDER NOTICE - COMMISSIONERS REPORT.

In proceedings under the act of May 14, 1874, providing for the "dividing any borough into wards, of erecting one or more new wards out of parts of two or more adjoining wards, of dividing any wards already erected into two or more wards, of altering the lines of any wards, or ascertaining the lines or boundaries of any ward or wards," the order of the court appointing the commissioners must contain an explicit direction to them to inquire into the propriety of granting the prayer of the petitioners; and it must direct that notice of the proceedings be given and must designate the character of such notice. The report of the commissioners must contain an explicit opinion as to the expediency or propriety of granting the prayer of the petitioners, and must certify in detail that the notice ordered was given.

Certiorari to the court of quarter sessions of Butler county.

On May 16, 1885, forty alleged freeholders of the borough of Butler presented their petition to the court of quarter sessions, under act of May 14, 1874, and its supplements, relative to the divisions of boroughs into wards, praying the appointment of commissioners. Three commissioners were appointed, and what purported to be an order was issued to them by the clerk of the court. On the 29th of May, 1885, the commissioners made a report recommending the division of the borough into four wards, and annexed to their report a draft showing the division lines.

Exceptions were filed and the appointment of commissioners was asked for to review the premises, who, upon appointment, did review and reported two against and one in favor of the proposed division. The court confirmed the original report, dismissing exceptions and the report of the reviewers.

Levi McQuistion, Wm. A. Forquer and Frank M. Eastman, for certiorari. This court has held, In re Division of Plumb Township, 2 Norr. 74, SHARSWOOD, J.: "It has been settled in a series of cases decided by this court upon the construction of this act Act of April 15, 1834-"that the order of the court appointing the commissioners, which is their authority for acting, must contain an explicit direction to them, according to the express terms of the law, to inquire into the propriety of granting the prayer of the petitioners." In re Division of Harrison Township, 5 Barr, 447; În re Conneaut Township, 6 Pitts. Leg. Jour. 121. The order of the court in this case was plainly defective in this respect. It contains no direction to the commissioners to the effect required. . There is certainly no explicit direction to them to inquire and report upon the propriety of granting the prayer. of the petition." See, also, Division of Gettysburg, 9 Norr. 358; Division of Harrison Township, 5 Barr, 447; Division of Plumb Township, 2 Norr. 75. Notice should have been given to the municipal officers of the borough. They are as much the guardians of the public interests as school directors in townships. The burgess, councilmen and school directors should have been specially notified, so that they might appear before the commissioners to show how a division would affect the interests under their respective boards. This court held in Clearfield Independent School District, 29 P. F. S. 421: "That ten days' special notice should be given by the commissioners to the school directors of the district out of which it is sought to lay off an independent district." That act, like this one, is silent as to notice, but they are strictly analogous. Why not enforce the same rule in this case? Does not the division of a borough into wards affect the public in general, the public schools, the number of school directors, the number of town councilmen? The establishment of an independent school district only affects one branch of a municipality, and if the school directors must have ten days' special notice why not assert the rule with equal vigor in this case when the interests of all branches of the municipality are to be affected? The record does not show special notice to the municipal officers of the borough and in fact none was given. The very fact of the want of such notice led to the exceptions and petition for review.

Thomas Robinson, contra. "Whatever, from a view of all in general, may be rendered certain in particular shall be deemed so," is a legal maxim applicable here. In 2 Binn. 250, it was held that the order to view need not state the qualifications of the viewers. "It will be presumed that the sessions made the appointment according to law. "Where the report is not palpably erroneous, the court will not interfere upon allegation of a mistake of fact." 6 Phila. 384. "The supreme court will not set aside proceedings for an error that has done no injury." 3 Brewst. 190.

GREEN, J. In the case In re Harrison Township, 5 Barr, 447, which was a proceeding for the erection of a new township under the act of 15th April, 1834, we said, on page 450, ROGERS, J.: "The first duty that the commissioners have to perform is to inquire into the propriety of granting the prayer of the petitioners, whether it be

a prayer for the creating of a new township, altering the lines of a township, or ascertaining and establishing the lines or bo indaries of a township, and to report to the court their opinion of the same, that the court may take such order thereupon as to them may appear just and reasonable.

It seems, therefore, that the order of the court, which is the authority to the commissioners in the performance of their duty, should contain an explicit direction to that effect, and that the report should contain an equally explicit opinion as to the expediency or propriety of granting the prayer of the petitioners. If the proceedings be defective in either particular, it is an error for which the whole must be set aside." This was followed in a precisely similar case under the same act. In re Division of Plum Township, 2 Norr. 73, in which it was said, SHARSWOOD, J.: "It has been settled in a series of cases decided by this court upon the construction of this act that the order of the court appointing the commissioners, which is their authority for acting, must contain an explicit direction to them, according to the express terms of the law, "to inquire into the propriety of granting the prayer of the petitioners." Because the order in that case did not contain such a direction, the order was reversed, and proceedings quashed.

It

The present case arises under the act of May 14, 1874, providing for "the dividing any borough into wards, of erecting one or more new wards out of parts of two or more adjoining wards, of dividing any wards already erected into two or more wards, of altering the lines of any wards, or ascertaining the lines or boundaries of any ward or wards." This latter act is practically a mere copy of the act of 1834, relating to townships in all its requirements as to the proceedings. contains in identical words the direction to appoint three commissioners "to inquire into the propriety of granting the prayer of the petition." The decisions under the act of 1834 are, therefore, directly pertinent in cases arising under the act of 1874. The order to the commissioners in the case at bar contains no direction to them to inquire into the propriety of granting the prayer of the petitioners, nor any equivalent for it, and it is, therefore, fatally defective under the rulings in the cases cited. We think in all proceedings of this nature, directed by statute, the requirements of the statute ought to be strictly complied with. We must assume they are exacted for proper purposes, and a decent respect for the law-making power demands a close conformity to their views. It is no hardship upon petitioners to require them to observe the necessary formalities in their proceedings, and a very moderate degree of care on the part of the persons who prepare the papers, and conduct the business in the courts, will always suffice to prevent the embarrassments which result from a disregard of the provisions of the law in these respects.

We think, also, though the act is silent upon the subject, that proper notice of the proceedings should be directed by the court on the filing of the petition, and the character of the notice to be given should be embodied in the order. The report should certify specifically what notice was given so that it may appear on the face of the proceedings that the order of the court has been complied with. The powers conferred

by the act are of a public and an important character, and all parties interested ought to have an opportunity to be heard, and such opportunity can best be obtained by an adequate notice so given as to reach most effectively the various parties to be affected. Upon this subject the case of Independent District Number, 39 Casey, 297, and Wilkins Township School District, 20 P. F. S. 108, are quite in point. In the first of these, which was a proceeding to form an independent school district, STRONG, J., said: The act does not indeed require, in express terms that the commissioners shall give notice of the time and place when and where they will proceed to inquire into the expediency of establishing the new municipal division. But the public interests as well as justice to individuals so obviously require that such notice should be given, that it has always been held that the want of it is fatal to the proceedings." See, also, Clearfield Independent School District, 29 P. F. S. 419. In the present case it does not appear that any defined notice was ordered to be given, and the report merely certifies that due public notice was given, without describing the notice or how it was given.

Decree reversed and proceedings quashed.

GIBSON V. SUTTON.

November 1, 1886.

HUSBAND AND WIFE-SEPARATE ESTATE - PERSONAL PROPERTY PURCHASE GIFT LIABILITY

CREDITORS.

A married woman having no separate estate cannot buy on credit, horses, sheep, hogs, farming implements, etc., and hold them against her husband's credi

tors.

A married woman may receive as a gift her husband's personal property from one purchasing it at a bona fide sheriff's sale and hold it free of liability for her husband's debts.*

Error to the court of common pleas of Butler county.

This was a feigned issue to test the ownership to personal property; it was directed for the use of a married woman against a creditor of her husband. The verdict was for plaintiff. The facts are set forth in the opinion.

A married woman must have a

R. P. Scott, for plaintiff in error. separate estate to protect her purchase upon credit. The estate must be available and proportionate to the credit it supports. Her purchase must, in fact, be made not upon her credit, but upon the credit of her separate estate, upon her ability to pay out of her own separate funds. Gault v. Laffin, 8 Wr. 307; Pier v. Siegel, 11 Out. 502, and cases therein cited. Goods purchased by a married woman on her own credit are not her separate property. Her credit is nothing in the eyes of the law, and when she does contract the law esteems her the agent of her husband. Heugh v. Jones, 8 Casey, 432; Hallowell v. Horter, 11 id. 375. And what she may acquire as the result of her skill and industry, or on her merely personal credit, accrues to her husband, and

* See 3 East. Rep'r, 817.

as to his creditors is to be taken as his, and is liable for his debts. Raybold v. Raybold, Harr. 311; Bucher v. Ream, 18 P. F. S. 421.

A. T. Black, for defendants in error. A married woman may carry on and manage a farm with the assistance of her husband and his children and hold the products, and articles purchased with them, against her husband's creditors. Rush v. Vought, 5 P. F. S. 437. And this is not changed by the fact that the husband acts as agent for his wife, or even if the business be conducted in his name. Troxell v. Stockberger, 9 Out. 405. A married woman may receive as a gift her husband's property from one purchasing it at a bona fide sheriff's sale, and use it, trade with it, purchase other goods with its proceeds, and hold all against her husband's creditors. Whether the transfer of this property is a gift or whether it is a purchase by the married woman on her own credit, without any separate estate to support it, is a question for the jury. Hess v. Brown, i Amerman, 124.

GREEN, J. The controversy in this case was over the title to certain personal property claimed by the plaintiff, a married woman, against a creditor of her husband, who had seized it in execution as the husband's property.

The property in question, or some of it, had formerly belonged to her husband, and had been sold at sheriff's sale and purchased by his brother at a fair price, and paid for, and the money distributed among the husband's creditors. The real estate of the husband, a farm of about one hundred acres, had also been sold by the sheriff and purchased by the brother. After the sale the brother leased the farm to the husband upon a contract for the payment of wages to the husband. The personal property in question, being a stock of horses, cattle, sheep, hogs and farming implements, remained on the premises and were used by the consent of the owner, the brother, in conducting the farming operations. The brother had borrowed $3,700 upon a mortgage of his own land and this farm, in order to raise the money with which to buy the real and personal estate of the husband and the money was so applied. All this occurred in 1879. The husband and wife occupied the farm for several years, and the mortgage given by the brother for $3,700, was reduced by payments to $3,000, by the year 1883. In that year the brother agreed with the wife to sell her the land for $3,000, in order that the mortgage might be paid off. So much is clear under the evidence. The money was furnished by one Williamson, in the interest of the wife, and the form of the transaction was that the brother made a deed in fee-simple to Williamson for the farin for the consideration of $3,000, which was paid by Williamson. The latter immediately agreed with the wife in writing to sell her the land for $3,000, payable in four years with interest, and that in the meantime she should occupy the land and take the profits. The title to the land is still held by Williamson, and the wife and her husband have been in possession of the land ever since. Now the question is as to the title to the personal property. The plaintiff claims it was given to her by the undoubted owner, her husband's brother. The defendant claims it was purchased by the plaintiff on credit, and as she had no separate estate, it became the property of the husband and subject to his debts. There is no