Isaid that the books are obscure in the definition of riots, and that he took it that it is not necessary to say they assembled for that purpose, but there must be an unlawful assembly; and as to what act will make a riot or trespass, such an act as will make a trespass will make a riot; as if a number of men assemble with arms, in terrorem populi, though no act is done; so if three come out of an alehouse and go armed. (Tomlin's Law Dictionary, see Riot.) "Wherever there is a pre-determined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous. Thus, although the audience in a public theatre have a right to express the feelings excited at the moment by the performance, and therefore to applaud or hiss any piece which is represented, or any person who exhibits on the stage, yet where a number of persons, having come to a theatre with a pre-determined purpose of interrupting the performance, so as to render the actors entirely inaudible, though without offering any injury to the house, it was held that they were guilty of a riot." Clifford v. Brandon, 2 Camp. 268. "It is a riot if a number of people assemble in a town, in the dead of night, and, by noise or otherwise, disturb peaceful citizens." Penna. v. Criffs et al., Addison's Reports, 277. Time, place and circumstances are not without influence in characterizing human action. The ringing of church bells in the years that are gone was considered, if not absolutely necessary, at least altogether lawful. But now in densely populated places and when clocks and watches are found in every habitation, the same thing under certain circumstances has been declared a nuisance and restrained by injunction. Certain conduct might be considered riotous in a church which would not be so in a bar-room; on the sabbath, which is not such on a secular day; and under our present civilization which would not so have been considered in ages past and gone. The evi dence on both sides in this case shows that the defendants, or some of them, in the latter part of July last or beginning of the following August, went to the cabin of the prosecutor in this county, and, with ratchet boxes, bells, horn and discordant noises, engaged in what they call a serenade. It does not appear that they did any injury to the cabin, then forming the residence of the prosecutor, and theretore we think there should be no conviction under the third count of the indictment. But we think the evidence is sufficient, if believed by the jury, to constitute the offence charged in the first and second counts of the indictment. In order to operate the boxes produced in evidence, the bells and the horns that produced the noises heard a mile away from the scene of action, such violence was necessarily employed as was sufficient to constitute an element in the crime of riot: and the acts so performed we think must now be held unlawful. It is the duty of the Courts so to administer the laws as to preserve the public peace. And however serenades may have heretofore been regarded in the community, we think it is the duty of the Courts to so declare to law to be, that that which is now calculated to disturb the public peace is contrary to law. If we are not mistaken, serenades of this kind have been resisted in several instances by the parties serenaded to the extent even of the use of fire arms, and it certainly depends very much upon the personal characteristics, good nature and forbearance of the parties serenaded, that they are not forcibly resisted in every instance. Tempora mutantur et non matamur in illis, is the expression of a fact, which challanges recognition. That which is now calculated to disturb peaceful citizens and incite to active resistance must be declared to be unlawful; and serenades of this kind are characterized by that sort of violence that constitutes the offence, if perpetrated by three or more, which is riotous in all its incidents. All present at a riot are prima facie of the number of rioters. But owing to the curiosity implanted in our nature, which attracts spectators to public demonstrations, the presumption of guilt may be rebutted by actual proof that the spectators were not active participants in the scenes they were witnessing. And if any of the defendants in this case were merely spectators, who were not of the number who originally met for the purpose of effecting this serenade, then, upon evidence that they did not actually assist in producing the discordant sounds and annoying noises, they should be acquitted. But if all assembled at the place of serenade had previously met, and came there in company, they might all be convicted. You may find certain of the defendants guilty in manner and form as they stand indict ed in the first and second counts of the indictment, and as to the rest of the defendants not guilty, if you think such verdict justified by the evidence. Now, finally, we say to you that so called calathumpian serenades, performed with instruments, creating hideous noises, are riotous within the meaning of the law, and we submit it to you under all the evidence in this case, to say whether the defendants in this case or any of them are guilty of such offence. jury that the defendant could not be held as a joint lessee, nor as a surety or guaran、or, and left it to them to say whether the defendant had collected the rent from Warner and had not paid it over, as testified by the plaintiff. A more careful examination of the authorities, which were not cited to us upon the trial, has satisfied us that in charging as to the defendant's liability upon the written instrument we erred. The case of Fidler v. Hershey, 9 Nor. 363, seems to be in point. That was an action to recover rent. In the body of the lease the name of Householder alone appeared, but Spangler and Fidler signed as securialone, and upon writ of error taken by ties. The action was defended by Fidler him the court said: "the evidence tended to show, and the jury found, that there was a lease signed by Householder, Spangler and Fidler his sureties, and though Hershey" (the lessor) "had knowledge of that relation, they were jointly liable to him." The case of Kleckner v. Klapp, 2 W. & S. 44, is still more to the point. It was an action to recover rent. In the body of the lease Kleckner and Charles are named as lessor and lessee respectively. It was signed by them, and also by Klapp, who added to his signature the word "surety." The court, in holding that he was liable, said: "This is exactly the case of Croddock v. Armor, in which such a marginal annexation to the name of one of the parties was not allowed to change his character of promissor to that of guarantor." In the case of Klapp v. Kleckner, 3 W. & S. 519, the instrument was held to be a joint and several obligation. In the case of Croddock v. Armor, 18 W. 258, the surety annexed to his signature to the note in suit the words, "security for the fulfillment of the above." The court said: "They are not technically words in a contract of guarantee, and the juxtaposition of the signature, as well as the absence of apt words, to indicate a contingent responsibility, shows that the parties intended to be jointly bound." See, also, upon the question raised as to the statute of frauds, | Pain v. Stackhouse, 2 Wr. 302-306. These authorities clearly show that there was error in our instructions upon this point We are not satisfied that there was any mistake in our instructions as to the repairs made by the defendant. The rule is made absolute. YORK LEGAL RECORD. properly ascertained in the duly appointed way, the facts must be accepted as true. In Appeal from the decree of the Court of several specifications of error relating to Common Pleas of Clarion county. October 22, 1883. STERRETT, J. the master's conclusions of fact and the action of the court upon exceptions thereto, are not sustained. After an elaborate discussion of the testimony and reference to authorities bearing thereon, the learned master says: "In the light of these authorities, and upon full consideration of all the evidence, without further commenting on the weight, weakness or contradictions therein, on either side, in our judgment it preponderates strongly in favor of plaintiff, and establishes to our satisfaction beyond a reasonable doubt the complaint set up in this bill. We therefore find the facts stated in plaintiff's bills to be substantially true and correct, and content In considering and weighing the evidence and in drawing his conclusions therefrom, the learned master appears to have proceeded on substantially correct principles, and an examination of the evidence satisfies us that it was quite sufficient, both in kind and degree, to warrant his conclusions of fact and justify the court below in sustaining them. As to the averments of the bill which constitute the equity of plaintiff's case, he introduced testimony that was clear, distinct and positive. The testimony of Mr. Slattery, as well as that of the plaintiff himself, was clearly of that character. In addition thereto, they were fully sus-myself by this reference thereto without tained by the corroborating evidence of extending this report by repeating them several witnesses, as to material allega- here." tions of the bill. If this testimony was believed, the sufficiency of the evidence, in a legal point of view, to convert a deed, absolute on its face, into a mortgage, cannot be doubted. It was clear, precise and indubitable. It is true there was conflicting testimony as to all the essential features of the case, but the proper functions of a master, in such cases, is to consider the testimony, pass upon the cred-pay his bid, and it was then agreed, by ulity of the witnesses, and thus determine the facts. If the existence of conflicting testimony, introduced perhaps by guilty parties for the very purpose of shielding themselves, were always sufficient to render the evidence, as a whole, doubtful or uncertain, few fraudulent transactions would be exposed or thwarted. When The substance of the controlling facts thus established is, that at a sheriff's sale, in August, 1879, of the respective interests of Eli Logue and Reuben Logue in a certain tract of land, the appellee was a bidder and became the purchaser of said interests for the aggregate sum of $6,110; that shortly afterwards appellant agreed to loan appellee the money with which to and between them, that as security for the loan the sheriff's deeds for the property so purchased by the appellee should be made directly to appellant, to be by him held, as a mortgage, until the money loaned with interest thereon was repaid, and accordingly the sheriff's deeds for the property were executed, acknowl- ing the land as security for its repayment. edged and delivered to appellant; that Appellant's subsequent repudiation of the soon thereafter appellant fraudulently re- agreement, under which the deeds were pudiated said agreement and claimed to made to him directly, and his attempt to hold the legal title to the land absolutely use the deeds for a purpose that was in his own right, free and clear of any in- never intended when he obtained them, is terest of appellee therein; that, in Oc- a palpable fraud against which equity, tober, 1879, appellee tendered appellant under the facts and circumstances found the full amount of the loan and interest by the master, will undoubtedly afford thereon, which the latter refused to ac- relief. cept. The master also finds that since the filing of the bill appellant was regularly put in possession of the land and then held the same under the sheriff's deeds above mentioned. The decree of the court below declaring that the sheriff's deeds be taken and held to be mortgages, given to appellant to secure the payment of the $6,110 loan, made by him to appellee on August 13rd, 1879, and enjoining appellant from conveying or encumbering the premises, etc., is correct as far as it goes, but it does not go quite far enough. It should also provide that upon repayment of the loan, or so much thereof as remains unpaid, within a reasonable time, appellant shall convey the land in fee to appellee, by deed with covenant of special warranty against all acts done or suffered by himself. This decree may be enforced by attachments, or a master may be appointed by the court for the purpose of making the conveyance. It appears that since the de The question then is, whether upon the facts thus established the appellee was entitled to a decree declaring the sheriff's deeds to be in fact mortgages, and ordering appellant, upon payment of the money secured thereby, to convey the legal title to the land therein described to the appellee. In some of its features the transaction differs from the familiar case of an absolute conveyance of land by the holder of the legal title, as security merely, and so intended by the parties thereto; but in principle it is the same. Equity regards the substance rather than the form of a transaction. By his purchase at the sheriff's sales appellee acquired an inceptive title to the land in question, which by payment of purchase money and delivery of deeds would have ripened into a complete legal title. He had such an interest as would have been bound by the lien of a judgment entered between the date of sale and the acknowledgment and delivery of the sheriff's deed. But, instead of taking the deeds in his own name and then mortgaging the land to secure the loan made by appellant, it was suggested by the latter that the deed should be made directly to him as security for the loan. This was agreed to and the arrangement was carried out. The manifest purpose of this was not to vest the title absolutely in appellant, but to enable appellee to raise money to pay his bid by pledg- thereof by the court, but the costs incident to such re cree was entered the case has been sent to a master for the purpose of stating an account between the parties and ascertaining the balance due by appellee to appellant. The sum to be paid by appellee to entitle him to a conveyance of the land will thus be ascertained and the decree can then be carried into effect by the court below. Decree affirmed and appeal dismissed at the costs of appellant. Patterson's Appeal. Trustees-Discretion of―Commission of. When a trustee expends, judiciously and for the permanent improvement of the trust estate, a larger sum of money thas was originally contemplated, under an order of court authorizing such improvement, he will not be surcharged with the sum so expended. A trustee acting in good faith is entitled to a commission on money borrowed and expended in the improvement of the trust estate, even though his account is so kept as to require testimony in explanation and a restatement statement are chargeable to accountant. Where a cestui que trust furnishes money to aid in pay expenditure, so far as they are concerned, is without merit As the exceptant vol ment of improvements, in excess of the amount provided for by order of court, he is estopped from denying the right of the trustee to make such additional expenditures. Appeal from the decree of the Or- untarily furnished of his own money phans' Court of Allegheny county. T.H. Baird Patterson, Esq., trustee, was authorized and empowered to borrow $64,000 for the improvement of certain real estate at corner of Penn avenue and Sixth street, Pittsburgh. The money was borrowed and so expended, but was insufficient to pay for the improvements. One of the parties interested in the estate advanced a large sum of money to assist in payment of the extra cost, and subsequently filed exceptions to the trustee's account. The following extracts from the opinion of OVER, J., contain a brief but comprehensive statement of the facts and of the law applicable to such cases. "It appears from the evidence in this case that the trustee, T. H. Baird Patterson, has expended in erecting the buildings on the trust property, and fitting them up for tenants, the sum of $71,008.74, and in payment of taxes and insurance on the property, interest on the mortgage, and other incidental expenses, the sum of $14,026.93, making a total expenditure of $85,035.67. It cannot be questioned that this sum has been very judiciously expended, and that the result has been to largely enhance the rental and permanent value of the property. "It is objected, however, to allowing the trustee credit for all these expenditures, that he was limited by the decree of court appointing him, to an expenditure of not more than $64,000. "The cost of the building in excess of the $64,000 has been paid by the trustee, twenty-five hundred dollars of it with money furnished by the exceptant, and the balance out of the rents collected by him. The contingent interests are certainly not injured by having a better building erected, without additional encumbrance on them, than was originally contemplated. And the objection to this twenty-five hundred dollars towards paying this additional cost, he is estopped from denying the trustee right to expend that sum. The only cause of complaint, then, which he could possibly have is that the rents were appropriated to its payment. The evidence shows that he was frequently consulted by the trustee in regard to the building, the different contracts, the changes made therein and the improvements demanded by the tenants, and consented to the same. That he was at the building almost daily, and knew that it would cost more than originally contemplated, and made no objections. Now, that the additional cost had been incurred, and he largely benefitted thereby, he is certainly estopped from denying the right of the trustee to appropriate the rents to its payment. There is no doubt from the evidence that the trustee gave the greatest care and attention to this building, and the amount claimed by him for his services, five per centum on the amount expended by him seems reasonable, and is therefore allowed him. "The property upon which the building was erected consists of four adjoining lots of ground, each of which was devised by the will of Joseph Patterson, deceased, to one of his four children for life with remainder over. "The contracts for the construction covered the whole of the building on this property as well as a building on a leasehold adjoining, which the devisees for life were having erected under an arrangement with the trustee, Mr. Patterson. The cost of the building on each lot was not equal, and to adjust it properly it was necessary to estimate the amount of work done on each. As the contracts were finished the trustee should have had the cost of the work apportioned, and should have filed such apportionment |