certify a warrant, in June, 1896, nearly one year after the passage of the ordinance. In the mean time, on the faith of that ordinance, the committee contracted debts in carrying out the very object declared in the ordinance, and actually advanced two thousand five hundred dollars. Shall they suffer this loss, or the city pay what it promised to pay them, on the faith of which they incurred the expense? Even if there is a doubt about the power of the city to pass the ordinance of July, 1895, or some legal irregularity in the ordinance of February, 1896, good faith and common honesty would require the city to pay.

The relators have incurred debts, for which proper vouchers have been furnished, to the amount of seven thousand five hundred dollars. They can only ask for a certificate for that amount at this time. The reports and statistics should undoubtedly be printed for public information. The city would otherwise lose the entire fruits of the investigation. The committee are of opinion it will require fifteen hundred dollars more for that purpose. When these are printed it will be time enough to ask for another certificate.

The following decree was entered: And now, March 18, 1897, this case came on to be heard, and was argued by counsel, and upon due consideration thereof, it is ordered, adjudged, and decreed that a writ of peremptory mandamus issue upon H. I. Gourley, controller of the city of Pittsburg, directing him to issue and approve a warrant to the provisional committee of the Lake Erie and Ohio River Ship Canal, for the payment to them of the sum of seven thousand five hundred dollars, as set forth in the sworn statement, filed by John B. Jackson, treasurer of said committee, with the said controller.

209 PER CURIAM. It is unnecessary to refer in detail to the facts of this case. They sufficiently appear in the pleadings and in the opinion of the court below; and for reasons given in that opinion, we think the decree should not be disturbed. The case is clearly not within the inhibition of section 7, article 9, of the constitution. The appropriation was a very reasonable one; and the purpose for which it was made was certainly not foreign to the material interests and general prosperity of the municipality, but quite the contrary. We are therefore of opinion there was no error in holding that councils had the power to make the appropriation, and that good faith to the relators and others who acted in reliance thereon requires that the sum thus appropriated should be paid.

Decree affirmed and appeal dismissed at appellants' costs.

MUNICIPAL CORPORATIONS-POWER TO MAKE APPROPRIATIONS.-A city has no power to loan its credit, or make its accommodation paper for the benefit of citizens to enable them to execute private enterprises: Clark v. Des Moines, 19 Iowa, 199; 87 Am. Dec. 423. A reasonable appropriation by a city to a corporation organized to create a fund to pension its members who are policemen, is an appropriation to a strictly municipal use and necessary for the welfare and comfort of the city, and not in violation of a constitutional provision prohibiting the legislature from authorizing any city "to become a stockholder in any company, association, or corporation, or to obtain, or appropriate money, or to loan its credit to any corporation, association, institution, or individual": Commonwealth v. Walton, 182 Pa. St. 373; 61 Am. St. Rep. 712, and note.

STROUP V. RAYMOND.

[183 PENNSYLVANIA STATE, 279.]

EXECUTIONS-SHERIFF'S

SALES-SETTING ASIDE.

The setting aside, or refusal to set aside, a sheriff's sale, is in the sound discretion of the lower court, and unless there is a manifest and gross abuse of that discretion, the appellate court will not disturb the decree.

JUDICIAL SALES.-SHERIFF'S SALES cannot be set aside for mere inadequacy of price.

JUDICIAL SALES-SHERIFF'S SALES-ABUSE OF DISCRETION-INADEQUACY OF PRICE.-A decree of the lower court setting aside a sheriff's sale for mere inadequacy of price, is an abuse of discretion, and may be reversed on appeal.

SETTING

EXECUTIONS - SHERIFF'S SALES ASIDE FOR MUTUAL MISTAKE.-A sheriff's sale is properly set aside when it appears that all of the parties interested mistakenly supposed that the purchase was subject to a mortgage, which belief caused the property to be sold for a grossly inadequate price. B. L. Forster and J. E. Snyder, for the appellant.

M. W. Detweiler, for the appellee.

281 DEAN, J. Charles N. Raymond borrowed from Anna H. Stroup two thousand dollars, and to secure the loan, executed to her a mortgage in that sum on a lot of ground and dwellinghouse in the borough of Middletown. The value of the property was not less than two thousand five hundred dollars. A judgment bond accompanied the mortgage; default having been made by Raymond in payment of the debt and interest, judgment was entered on the bond, execution issued, and the mortgaged property seized and sold by the sheriff on December 30, 1896, to Wilmer Crow, this appellant, at his bid of four hundred dollars. There were other bidders, but it is found as a fact by the court below, from the testimony, that all parties interested, which would include plaintiff, defendant, and purchaser, believed the sale was made subject to the mortgage. It appears

clearly from the testimony that Crow, the purchaser, until some time after the sale, assumed the property had cost him over two thousand four hundred dollars. It was then discovered that as the sale had been made on the bond the mortgage had been given to secure, the lot was discharged from the lien of the debt. This rule was then taken, at instance of an intending bidder, and plaintiff and defendant, before the sheriff's deed was acknowledged, to set aside the sale. A bond with ample security was tendered, to be filed in court, stipulating that on a resale a bid sufficient to cover mortgage, debt, interest, and costs would be made. After testimony taken, the court set aside the sale. The purchaser, Crow, appealed to this court, and counsel for plaintiff and defendant in the judgment now move to quash the appeal, assigning several reasons, only one of which we notice, viz: No appeal lies from the discretionary exercise of a power resting with the common pleas. It is settled that the setting aside or refusing to set aside a sheriff's sale is in the sound discretion of the court below; and unless there be a manifest and gross abuse of that discretion, this court will not disturb the decree. All our cases touching the question are so fully cited in the opinion of the superior court (Laird's Appeal, 2 Pa. Sup. Ct. 300) that we need not repeat them. And it is held in the same cases that this court may either affirm the decree or quash the appeal. But it may be argued that there was a manifest abuse of discretion here, because the learned judge of the common pleas sets out as a reason for setting aside the sale gross inadequacy 282 of price, which the law has settled is not of itself a sufficient reason. If this were the only reason on which the decree rested, the argument of appellant would be sound; clearly, it is an abuse of discretion, when, to reach a decree, the court itself overrides the established law. Substantially the same position was taken by the court below in Young's Appeal, 2 Pen. & W. 380, decided in 1831, as is taken by the court below in the case before us. All the judges concurred in dismissing Young's Appeal, because no appeal was given by the act of 1827; two of the judges, Ross and Gibson, C. J., wholly dissented from the reasons given by the court below for setting aside the sale; the other three judges declined to express an opinion as to this part of the case, because it had not been argued. But the opinion of Ross, J., concurred in by Gibson, C. J., has ever since been followed by this court as the law, and is conceded by the learned judge of the court below to have been the law so lately as Ritter v. Getz, 161 Pa. St. 648. But he

thinks "the time has arrived when the hoary pretense of 'seizing upon other circumstances' might safely be sent to keep company with the many other useless fictions that have been abandoned in the modern desire for a more straightforward administration of the law, and that the courts should admit that when the price is grossly inadequate, that of itself is a valid reason or setting aside a sheriff's sale."

We do not think this statement meets the reasoning in Young's Appeal, 2 Pen. & W. 380. The opinion there states: "The bona fide purchaser at a sheriff's sale of land, the moment it is knocked off to him, if he complies in all respects with the conditions of sale, instantly acquires a vested right to the property sold. Such a purchaser would be bound by his bargain thus made, although his bid greatly exceeded its value. And if he purchase at a bona fide sale, greatly below the value, the vendor would be bound by the sale. Equality, in this case at least, is equity." The opinion then goes on to show that any other rule would necessarily affect sheriff's sales very injuriously, because buyers would not attempt to purchase at such sales, when they could be set aside for mere inadequacy of price. We do not see that lapse of time has changed the rule that “equality is equity" into the opposite one, that inequality is equity. The same reasons for adhering to all other formal 283 solemn contracts exist where sheriffs' contracts are regular and made under no misapprehension as to material facts. We are clearly of the opinion that the rule was founded upon the soundest reason, and should be adhered to. If the decree of the court below had for its foundation only the reason that inadequacy of price was sufficient to set aside the sale, we would reverse it as a palpable abuse of discretion. But it also rests upon a much sounder one; the court states that all parties interested acted on the mistaken belief that the purchase was subject to the mortgage; this was such a mutual mistake as would in most cases relieve parties from the obligation of their contracts. Undoubtedly, courts have, in cases where the purchaser believed he bought the land discharged from the lien of a mortgage, relieved him from the obligation incurred by his bid, if he made prompt application before acknowledgment of deed. And, on the other hand, there is no reason here why this purchaser should get for four hundred dollars a property which he thought he was paying more than two thousand four hundred dollars for. This mutual misapprehension, coupled with inadequacy of price, warranted the decree, and therefore there was in fact no abuse of discretion.

There being no such abuse apparent from the record or averments of appellant, the appeal is quashed.

EXECUTION SALES-SETTING ASIDE FOR INADEQUACY OF PRICE.-Mere inadequacy of price is not sufficient to avoid a sheriff's sale: Hollister v. Vanderlin, 165 Pa. St. 248; 44 Am. St. Rep. 657, and note. Yet when such inadequacy is very great, slight eircumstances tending to show that interested parties were misled, or by accident or mistake prevented from attending the sale, or preventing it, it may be set aside: Rogers etc. Hardware Co. v. Cleveland etc. Co., 132 Mo. 442; 53 Am. St. Rep. 494, and note. See Griffith v. Milwaukee Harvester Co., 92 Iowa, 634; 54 Am. St. Rep. 573, and note; Moran v. Clark, 30 W. Va. 358; 8 Am. St. Rep. 66. APPEAL.-Rulings of lower courts in matters resting entirely in their discretion will not be disturbed upon appeal, except where there is a refusal to exercise the discretion, or a flagrant abuse of it: Winslow v. Minnesota etc. R. R. Co., 4 Minn. 313; 77 Am. Dec. 519; Moody v. Fleming, 4 Ga. 115; 48 Am. Dec. 210; Commonwealth V. Eisenhower, 181 Pa. St. 470; 59 Am. St. Rep. 670, and note.

DEBTOR

BRADEN V. O'NEIL.

[183 PENNSYLVANIA STATE, 462.]

AND

CREDITOR-PREFERENCES-CONFESSION OF JUDGMENT.—A debtor may secure his creditor by a confession of judgment in his favor.

DEBTOR AND CREDITOR-PREFERENCES-CONTINGENT LIABILITY-CONFESSION OF JUDGMENT.-An indorser of a note is contingently liable to the holder thereof and may secure him by a confession of judgment.

DEBTOR

AND CREDITOR-PREFERENCES-CONFESSION OF JUDGMENT-FRAUD.-Confession of judgment by a debtor to secure a contingent liability to his creditor is not a fraud in law, and whether a fraud in fact depends on the surrounding circumstances.

EXECUTIONS SHERIFF'S SALES AGREEMENT AS TO BIDDING-FRAUD.-An agreement among a portion of the creditors to buy their debtor's property at sheriff's sale, and to manufacture and sell it, dividing the proceeds, is not fraudulent, if it does not prevent competition at such sale, nor depress the price.

C. Heydrick, W. A. Hindman, W. H. Hockman, H. R. Wilson, and C. Z. Gordon, for the appellant.

G. F. Whitmer, G. A. Jenks, B. J. Reid, and F. J. Maffet, for the appellee.

465 WILLIAMS, J. The verdict in this case was directed by the court as against the appellant bank and Rachel R. Pollard. Upon a motion for a new trial this verdict was set aside as to Rachel Pollard and a new trial granted, but the motion was refused so far as appellant was concerned, and judgment