induced him to promise not to bid against him; and not Beltzhoover's representation that he wanted "to bid it in, and save it for the family, if there was anything left, after paying his (Samuel's) honest debts."

This is the evidence upon which it is sought to establish a trust in this case on the ground of fraud; and I feel constrained to declare that in my judgment it is altogether too vague, uncertain and unsubstantial to establish a trust ex maleficio on the part of Jacob Beltzhoover. If titles could be overturned in this way, no man's possession would be safe.

But even if the evidence was sufficient to establish such a trust, the plaintiffs are barred from recovering in this ejectment, from lapse of time, and the adverse possession of the defendants, and those under whom they claim, for a period of more than thirty years. Walker v. Walker, 16 S. & R. 379; Lyon v. Marclay, 1 Watts 271; Strimpler v. Roberts, 6 Harris 283.

It is the province of the jury to weigh the evidence, and to determine the disputed facts, but the legal conclusion deducible from the facts, is a matter of law for the Court.

The jury is therefore instructed that as a matter of law, the plaintiffs are not entitled to recover, and that upon all the evidence in the cause, the verdict should be in favor of the defendants. The plaintiffs have not made out such a case of trust as would justify a Chancellor in decreeing a specific performance.

The points submitted by the plaintiffs' counsel, so far as they are not answered in the charge, are refused.

Barnet v. Dougherty, 8 Casey 371; Nixon's Appeal, 13 P. F. Smith 279.

In the District Court of Allegheny County.

ROBINSON v. PATTERSON.

(Vol. I., p. 122, 1853.)

Since the Act of 1848, the bond and warrant of attorney of a married woman are valid if given for the purchase of real estate for her separate use.

THE following is the substance of the case stated for the opinion of the Court.

On the first of August, 1848, the sheriff conveyed two lots of ground to the defendant by deed duly recorded, for the consideration of $800. Eighty dollars were paid in hand, and for the balance the defendant gave her judgment bond, payable in nine annual instalments of $80 each with interest. The deed after reciting the conveyance contained the condition, "subject to the payment of a certain bond for the purchase money, bearing even date herewith." The judgment bond was entered up August 15, 1848. The Court on the 14th of October, 1851, opened the judgment confining the defendant to the plea of "coverture." It is admitted by the case stated that Arabella Patterson was married at the time of the giving of the bond.

Opinion by

WILLIAMS, A. J.-The bond of a married woman, executed during coverture, is, by the common law, absolutely void; and judgment entered on a bond by virtue of a warrant of attorney annexed, executed by husband and wife, is also void as respects the wife and her estate: Dorrance v. Scott, 3 Wh. 309; Caldwell v. Walters, 6 Harris 79. The bond and warrant, by virtue of which the judgment in this case was entered, having been executed by the defendant during coverture, are absolutely void unless authorized or validated by the act "to secure the rights of married women," passed the 11th of April, 1848. Can then a married woman, since the passage of that act, execute a valid bond and warrant of attorney to enter judgment for a debt contracted by her during coverture in the purchase of an estate for her separate use? This is the question presented by the case stated; and I am not aware of any judicial decision in reference to it.

By the sixth section of the act it is declared that "every species and description of property, whether consisting of real, personal, or mixed, which may be owned by or belong to any single woman, shall continue to be the property of such woman as fully after her marriage as before; and all such property, of whatever name or kind, which shall accrue to any married woman during coverture by will, descent, deed of conveyance, or otherwise, shall be owned, used and enjoyed by such married

woman as her own property, &c." The act, it will be seen, mentions, in express terms, property which shall accrue to any married woman during coverture by deed of conveyance. A married woman might, before the passage of this act, purchase without her husband's assent; but he could divest her estate by disagreeing to the purchase: Hileman v. Bouslagugh, 1 Harris 355. Since the act, he no longer has any such power. The right of a married woman during coverture to purchase and take the title to real estate in her own name, and for her separate use, without the liability of its being divested by the dissent of her husband, is clearly recognised by the act. But though she may purchase and take the title to real estate by deed of conveyance during coverture, perhaps it does not necessarily follow that she may execute a bond and warrant of attorney, or any valid security for the purchase money. But the act provides further, and declares (Proviso 2d, Sect. VI.) "that nothing in this act shall be construed to protect the property of any such married woman from liability for debts contracted by herself, or in her name, by any person authorized so to do." The debts referred to in this proviso are those contracted by a married woman, or her authorized agent in the management of her separate estate, and do not embrace those contracted for necessaries for the support and maintenance of her family, for which the estate of her husband is primarily liable.

It cannot be doubted that the proviso confers, by implication, upon a married woman the right to make valid and binding contracts during coverture, in relation to her separate property. How else could she manage and conduct the business and affairs of a large lauded property? If she has the power of contracting debts, it would seem to follow as a necessary incident that she may give the usual and ordinary securities or evidences thereof; and the proviso, as we have seen, expressly declares, "that nothing contained in the act shall be construed to protect the property of any such married woman from liability for debts contracted by herself, or in her name, by any person authorized so to do."

The debt, for which the bond in question was given, was contracted by the defendant in the purchase of real estate held and

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conveyed to her by the legal plaintiffs; and, by virtue of the bond and warrant of attorney annexed, the judgment was entered against her in this case "by a person authorized so to do." To declare the bond and warrant of attorney void, would, under the circumstances, be tantamount to a repeal of the just and equitable provisions of the statute. The act was intended for the protection of married women-to prevent their estates from being squandered and wasted by dissolute and profligate husbands-not to enable them to swindle and defraud the honest and confiding, with whom they might contract, out of their just claims. If a married woman cannot make valid and binding contracts in relation to the management of her real estate, and the disposition of her personal property, it is to little purpose that the legislature has declared that her property, of whatever description, shall remain hers "as fully after the marriage as before." It must, in very many cases, necessarily go to waste and inevitably perish for the want of legal ability on her part to make valid and binding contracts. If she cannot contract in relation to it herself, she cannot authorize any one to contract for her. The husband has no authority or power in the premises. The statute has not only deprived him of all right to the property of his wife, but has completely taken away his dominion over it. It is true that he may sell, convey, mortgage, transfer and encumber the estate of his wife with her written consent; but she cannot manage and preserve her own separate property, with or without the consent of her husband, unless she has the power to make valid and binding contracts. There is no merit in the defence set up here. It is not pretended that there was any fraud or misrepresentation on the part of the plaintiff in the sale of the lots, or that the contract was not a beneficial one for the defendant. She has not offered to rescind the contract of purchase; and I am not disposed to turn the plaintiff out of Court, and compel him to seek his remedy by ejectment. Such an exposition of the statute must completely tie the hands and fetter the estates of married

women.

It is therefore considered, adjudged and decreed that the order of this Court, made October 14, 1851, opening the judgment

entered in this case, be rescinded, and that the said judgment be reinstated.

Affirmed, 1 Casey 81; Mahon v. Gormley, 12 Harris 80; Heugh v. Jones, 8 Casey 432; Ramborger's Administrator v. Ingraham, 2 Wright 146; Glass v. Warwick, 4 Id. 140; Steinman v. Ewing, 7 Id. 63; Bruner's Appeal, 11 Id. 67.

In the Supreme Court of Pennsylvania.

IN RE STATE ROAD FROM ALLEGHENY CITY.

(Vol. I., 126, 1853.)

The power to appoint reviewers of a state road is discretionary with the Court of Quarter Sessions, and not the subject of review in the Supreme Court.

CERTIORARI to Quarter Sessions of Allegheny County.

This was a petition by part of the inhabitants of Reserve Township, presented to the Court showing that a State road had lately been laid out from Allegheny City to New Brighton; that said road had not yet been opened through said township; that the part of said road, in said township, beginning at Station No. 9, on land of William Woods, thence through land of William Carson and Hugh Fleming to the line of Ross and Reserve townships, is very badly located, requiring a very large outlay to open the same, whereas a much better road, at far less expense can be made between said points; also shorter in distance and within the proper grade. And praying that said part of said State road may be changed and supplied by a new road, and that the Court will appoint proper persons as viewers, &c., according to law.

The petition was held over for some time, until a remonstrance was presented to the Court against any change in the location of the road.

The Court, MCCLURE, P. J., for several reasons, refused to appoint reviewers, stating their opinion of the law to be that they had authority to appoint reviewers "as often as may be needful,"