of all that was stated upon it, but that the prima feree should not have passed upon all the quesfacies might be overcome by proof of mistake or tions which the parties had submitted to his defraud as to any item therein. This was all the cision, and ascertained the actual balance due defendant had any right to ask when the character from the defendant to the plaintiff. The plaintiff of this alleged account stated is considered. The had asserted, that the title to this property was summary for 1891 contains one item for cash col- held by the defendant in trust for him as the benlected of $82,557.11, items for cash to be collected eficial owner. The defendant asserted on the amounting to $23,084.19; total, $105,641.30. The other hand that he held the title as his own. It other side of the account has one item of cash became necessary therefore to investigate and depaid to date $81,964.09 and items for bills yet to cide this question. The prayer for relief filed by the be paid $19,555.06, making a total of $101,519.15. defendant asked that if his contention was susThis can hardly be called an account stated. It tained the plaintiff should be required to surrenshows upon its face that the transactions for the der the house to him, and account for its use. year are not closed. It gives no items of expen- This, in the absence of any objection or reply bediture to which the plaintiff could object. It fur- came, under the agreement of the parties, a subnishes no notice of the manner in which the totals ject for the examination and decision of the reof either debit or credit are made up, and no data feree. The jurisdiction, if otherwise doubtful, was upon which to rest an objection to any undis- conferred by the parties by their agreement, and closed item that may have entered into the totals subsequent conduct. Under such circumstances, on either side of the account. If the learned and painstaking referee made a mistake in his treatment of this question it was not against the appellant. the rule of equity that when the Court has acquired jurisdiction over a cause for one purpose, it may retain it for purposes of equitable relief not covered by the original prayers for relief in the The other assignment of error that requires no- bill is applicable: Allison's Appeal, 77 Pa. 221. tice is the seventh. The plaintiff had incorporated Another well settled rule is that a Court of equity into his bill an averment that the defendant held seeks to prevent all unnecessary litigation, and title to a dwelling house situated on Christian will wherever this is practicable dispose of the enstreet, Philadelphia, which he had bought with tire transaction brought under its notice: Johnpartnership funds at the request and for the use son v. Price, 172 Pa. 427. of the plaintiff, and asked a decree enjoining the Whether the joinder of the controversy defendant from encumbering or disposing of it over the title of this house, with that over and requiring him to convey the said house and the true balance of the partnership accounts lot to the plaintiff upon the payment by him of in the original bill should have been made, is not any balance that might be due to the defendant now before us. This question was taken out of thereon. the case by the written prayer of the defendant On the 18th of April, 1895, the parties took this that it should be considered and disposed of by case from the equity trial list, and referred it to the referee, and by the subsequent conduct of the E. Hunn Hanson, Esq., for trial with the evi- plaintiff. This assignment of error is sustained. dent intention of closing up all litigation and ad- The others are overruled. The decree is reversed justing the balance, if any, that might be due to as to the Christian street house and lot, and the the plaintiff. They agreed that the referee should referee is directed to ascertain what if any rents consider and dispose of any prayer for relief that are due thereon to the defendant and apply the should be made by the defendant with the same amount thereof on the balance found due to the effect as if a cross bill had been filed by him plaintiff by so much of the decree appealed from stipulating only that such prayer for relief be re- as stands unreversed, and make such further orduced to writing and filed with the referee. Under der in regard thereto as the rights of the defendthis agreement and immediately after it was made ant in said property may require. the defendant filed with the referee a brief prayer for relief in regard to the Christian street house asking that the plaintiff be required to surrender possession of the house and lot, and account for accrued rents during his occupancy. No answer or demurrer to this prayer was filed, but the hearing proceeded without objection on the part of the plaintiff and the evidence relating to this subject was fully heard. We can not see why in this state of the record and of the evidence the re W. D. N. May '97, 5. Constitution Corporations—Act of April 29, 1874, The Court entered judgment in favor of the defendant. The petitioner appealed, assigning as error, first, the conclusion of law of the Court: "The conclusion to which this discussion has brought us is that the Consolidated Gas Company is not, and was not on May 8, 1895, when the Pittsburgh Illuminating Company was incorporated, invested with the exclusive privilege of manufacturing gas for light only when in the city of Pittsburgh, and therefore, in accordance with the A gas company which has accepted the provisions of the general corporation Act of 1874, in accordance with stipulation filed by the parties, judgment is disection 26, has, by virtue of section 34 of the same Act sub-rected to be entered in favor of the defendant." sequently amended by the Act of June 2, 1887, P. L. 312, And second, that the Court erred in not decid exclusive privileges within the district or locality coving that the Act of Assembly of June 24, 1895, ered by the charter, until the stipulated dividends shall be earned and divided among the stockholders, as against P. L. 266, was unconstitutional and void, because another corporation whose incorporation sub-dates that of it violated the provisions of article one of section the acceptance of the provisions of the Act of 1874. The constitutionality of the Act of June 24, 1895, cannot be determined in proceedings in quo warranto where the stipulation of the parties is that the decision shall be upon the merits "whether the defendant is entitled to exercise the franchise of furnishing gas for light only,. this question to depend upon whether prior ex lusive franchise vested in the petitioner," where the defendant's charter has been issued prior to the approval of the Act. ten of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts. Lyman D. Gilbert and D. T. Watson, (with them John H. Weiss, John P. Elkin, deputy attorney-general, and Henry C. McCormick), for appellant. The privilege of supplying gas for light to the public acquired by the Consolidated Gas ComAppeal of the Commonwealth of Pennsylvania pany, by the acceptance of the Constitution and ex rel. Henry C. McCormick, attorney-general, corporation act, is an exclusive one within the from the judgment of the Common Pleas of city of Pittsburgh, until it shall have for five Dauphin County, entered in an action of quo years from and after the 15th day of February, 1895, divided among its stockholders a dividend equal to eight per centum. warranto. The facts of the case appearing from the record Act of April 29, 1874, sec. 34 cl., 3. The right to manufacture gas was the exclusive privilege of the Consolidated Gas Company at the time the Pittsburgh Illuminating Company was incorporated. entitled by virtue of section 34 of the Act of (a) The Act of April 29, 1874, did not author1874, to an exclusive right to supply gas light ize the creation of companies to supply natural within the City of Pittsburgh. The case was tried without the intervention of a jury and a stipulation was filed as follows: gas, and (b) That franchises to supply "heat to the public from gas and heat by means of natural gas, "The above case is submitted to the decision are not identical." But the line of reasoning of the Court to determine upon its merits whether used by the Court in its decision shows that it the defendant above named is entitled to lawfully believed that exclusive privileges for furnishing claim and exercise the franchise of furnishing gas heat as well as light from manufactured gas for light only to the public in the city of Pitts-could be obtained by a corporation created for burgh in the district described in its charter. This that purpose under the Act of April 29, 1874. question to depend upon whether a prior exclu What is a monopoly, as understood in law? sive franchise vested in the Consolidated Gas It is an exclusive right granted to the few, of Company." something which was before of common right. Thus, a privilege granted by the king for the sole to the inhabitants of a municipality by means buying, making, working or using a thing, where- of pipes and mains laid through the public streets by the subject, in general, is restrained from that is violated by a grant to an individual in the liberty of manufacturing or trading which before municipality of the right to supply his premises he had is a monopoly. with water by means of a pipe or pipes so laid. 4 Blackstone's Com., 159. Bac. Abridg. Prerogative, F. 4. A State will be bound by a grant of an exclusive right to a bridge or ferry, made in terms by the Legislature; the validity of such grant was implied. Charles River Bridge v. Warren Bridge, 11 Peters, *607. Charles River Bridge v. Warren Bridge, 7 Pickering, Slaughter House Cases, 16 Wall. 36, 65. The grant of letters patent to the Pittsburgh Illuminating Company is forbidden by the language of the identical statute under which it asserts its creation. Clause three of section thirty-four of the Act of April 29, 1874, treating of gas companies, says upon that subject: New Orleans Water Co. v. Rivers, 115 U. S. 674. Louisville Gas Co. v. Citizens Gas Co., 115 U. S. 683. Fletcher v. Peck, 6 Cranch, 137. New Jersey v. Wilson, 7 Id. 166. Morawetz on Private Corporations, sec. 431. When a State becomes a party to a contract, the same rules of law are applied to her as to private persons under like circumstances. When she or her representatives are properly brought into the forum of litigation, neither she nor they can assert any right or immunity as incident to her political sovereignty. Curran v. The State of Arkansas, 15 Howard, 308. J. H. Reed and John F. Sanderson, (with them P. C. Knox, Walter Lyon and Charles H. McKee), The Consolidated Gas Company acquired no "No other company shall be incorporated for that purpose until the said corporation shall have for appellee. from its earnings realized and divided among its stockholders, during five years, a dividend exclusive franchise by its acceptance of the proequal to eight per centum per annum upon its visions of the Constitution and the corporation capital stock." Act of 1874. And section 3 of the Act of June 2, 1887, P. L. 310, provides as follows: "And no other company shall be incorporated for the manufacture of gas to supply light only to the public until the said corporation shall have from its earnings, realized and divided among its stockholders, during five years, a dividend equal to eight per centum per annum upon its capital stock." When this Court considered the language of the first section of the Act of May 14, 1889, P. L. 211, it decided that words forbidding duplicate creation of corporations must be strictly construed. Homestead St. Ry. Co. v. Pittsburgh Ry. Co., 166 The legal rule of construction is strict against exclusive franchises. Scranton Elec. L. & H. Co. v. Scranton Ill. H. & The evident object of the Act of 1874 was to encourage the formation of water companies to supply the inhabitants of small towns with water, and to that end it prohibited the formation of rival companies until they should have become profitable. Freeport Water Works Co. v. Prager, 129 Pa. 618. Generality of expression in Acts of Assembly, as in contracts, is often restricted by regard to the subject matter to which it has been used. Moyer v. Pennsylvania Slate Co., 71 Pa. 293–298. The Act of June 24, 1895, P. L. 266, is uncon- The Consolidated Gas Company by acceptstitutional because it also violates section seven ance of the Act of 1874 became subject to the genof article three of the Constitution, in that it in- eral provisions thereof so far only as they specidirectly enacts a special amendment to the char-fically apply to accepting corporations. It did ter of the Consolidated Gas Company. not become subject to, nor has it the benefits con The Act of June 24, 1895, is unconstitutional ferred by those provisions of the statute which and void because it violates article one of section relate to gas companies, but remains subject to ten of the Constitution of the United States, the provisions of the Act of 1857, and, therefore, which declares that no State shall pass any law it did not acquire, and does not possess the eximpairing the obligation of contracts. clusive franchise asserted by it. An exclusive franchise granted to supply water If the Consolidated Gas Company acquired an exclusive franchise by its acceptance of the pro- and water companies. By the general corporavisions of the Constitution and the corporation tion Act of 1874, P. L. 75, provision was made Act of 1874, that franchise was revoked and annulled by the Act of June 24, 1895. The Act of June 24, 1895, is a general law within the provisions of Article III., section 7, of the Constitution. Wheeler v. Philadelphia, 77 Pa. 338. for the incorporation of gas companies, and by section 26, corporations theretofore existing for any of the purposes named and covered by the Act, upon accepting its provisions were to be "entitled to all of the privileges, immunities, franchises and powers conferred by this Act." And The new Constitution does not withdraw the by section 34, subsequently amended by the Act power of classification from the Legislature. of June 2, 1887, P. L. 312, the franchises and privileges were to be exclusive within the district or Commonwealth v. Del. Div. Canal Co., 123 Pa. 594 locality covered by the charter, until certain diTo say that no general law can be passed to vidends should be earned and divided among the regulate a certain subject because some of the stockholders. The Consolidated Gas Company in classes contained in the regulation do not yet February, 1895, accepted the provisions of the exist, or exist only in a limited number, is to hold Act of 1874, in the manner prescribed, and letters that no law can be passed to provide for future patent were issued to it accordingly. It would wants or necessities. The welfare of the State seem clear therefore that on May 8, 1895, the and one of the chief purposes of legislation would privilege of the Consolidated Gas Company was be struck down by such a decision. Kilgore v. Magee, 85 Pa. 401-411. f exclusive, and of this opinion apparently was the learned Judge below as he based his judgment altogether on the repealing Act of June 24, April 12, 1897. MITCHELL, J. We cannot re- 1895. But for reasons already shown, that Act gard this case as raising in proper form for ad- cannot control this case; and we must leave its judication, the question of the constitutionality constitutionality to be determined when it comes of the Act of June 24, 1895, P. L. 266, involving properly before us. as it would the construction of the phrase in sec- Judgment reversed, and judgment directed to tion 10 of Article XVI. of the Constitution, that be entered for the Commonwealth. the General Assembly shall have power to revoke or annul any charter of incorporation "in such manner that no injustice shall be done to the corporators." Oct. '96, 55. W. D. N. Supreme Court. Commonwealth. The learned Judge below appears to have thought the question sufficiently raised by the stipulation of the parties that the decision should Murder-Degree of-Question for jury-Duty of be upon the merits "whether the defendant is entitled to exercise the franchise of furnishing gas for light only . . . . this question tò depend While it is incumbent upon the Commonwealth, when upon whether prior exclusive franchises vested asking a conviction for murder of degree higher than the second, "to satisfy the jury of those facts and circumin the Consolidated Gas Company." But the stances which indicate the deliberate intention to kill," words "prior exclusive franchises" must refer in yet if sufficient time be afforded to enable the mind fully point of time to May 8, 1895, when the defend- to frame the design to kill, and to select the instrument, ant's charter was issued and its franchises what- or frame the plan to carry this design into execution, it is ever they were came into existence. It is manifest that this question of priority on May 8 cannot be affected by an Act not passed until June 24, and having no retroactive words, even if such words could be effectual for that purpose. The stipulation of the parties therefore is not in terms broad enough to include the question under the Act of 1895, and the appellant expressly declines to have it so enlarged. "The indictment in this case charges the deThe Consolidated Gas Company was incor-endant, Joseph Aiello, with the crime of murder. porated by special Act of May 19, 1871, P. L. To this indictment he has pleaded not guilty, and 1872, p. 1309, but was to be "organized, managed this forms the issue between the Commonwealth and governed as provided by the Act of March and the defendant, which you have been sworn 11, 1857," P. L. 77, for the incorporation of gas to try. This indictment you will have out with premeditated, and the law leaves the existence of a fully formed intent as a fact to be determined by the jury from all the facts and circumstances in the evidence. Commonwealth v. Drum, 58 Pa. 9, followed. Appeal of Joseph Aiello, from the judgment of the Oyer and Terminer of Jefferson County. The facts of this case are thus stated in the opinion of the Court, REEd, P. J.: you, and, in considering the offence therein "Our statute, however, divides murder into two charged, you must remember that the defendant grades: Murder of the first and second degree. is presumed to be innocent. Starting your inves- When there is an unlawful killing with malice tigation with this presumption, you must further aforethought, expressed or implied, it is presumremember that the burden is upon the Common- ed by the law of this State to be murder of the wealth, to prove beyond a reasonable doubt, second degree, and, to raise it to murder of the every material allegation contained in the indict- first degree, the Commonwealth must prove, bement, before a verdict of guilty can follow. yond a reasonable doubt, that it was committed "The crime of murder is pretty well understood with a specific intent to take life. Then an unlawby the public at large, and yet it is necessary that ful killing, with malice aforethought, expressed we should define it to you, and point out partic- or implied, is murder in the second degree; and ularly the essential ingredients which constitute an unlawful killing, with malice aforethought, the offence. Murder at common law is, where a expressed or implied, and committed with a speperson of sound memory and discretion unlaw-cific intent to take life, is murder in the first fully kills any reasonable creature in being, and degree. under the peace of the Commonwealth, with mal "The intent to take life is the distinguishing stroke is intentional and would be likely to produce death, the law presumes that the person so using such deadly weapon intended the probable and natural consequences of the act, and, the natural and probable consequence being death, it will be presumed that he intended to kill. ice aforethought, expressed or implied, and this characteristic between murder of the first and of is murder under the statute law of Pennsylvania. the second degree. If the jury find that there Hence it is important that you should fully com- was an unlawful killing and that it was attended prehend and understand this definition of murder by malice, expressed or implied, it would be murat common law. der, and it would then be necessary for the jury "There are two essential elements in the offence to inquire as to the intent. If the killing was as thus defined, to which we would particularly done with the intent to take life it would be murdirect your attention. First, it must be an unlaw- der in the first degree. If there was no intent to ful killing. If the sheriff were to execute a con- take life it would be murder in the second dedemned criminal in obedience to the mandate of gree. The intent may be inferred from the kind the law, that would not be an unlawful killing. of weapon used, the character of the wound inIf some one attempted to rob you on the high-flicted, the savage nature of the attack, and other way or to burglarize your house in the night like circumstances evidencing an intention to time, and you killed him in your efforts to pre- kill. Where a deadly weapon is used, such as a vent the commission of such felony, that would knife or stilletto, and it is voluntarily directed not be an unlawful killing, or, if you were attack- toward a vital part of the body, and the blow or ed and thereby put in imminent danger of losing your life or suffering great bodily harm, and it was necessary to slay your assailant to avoid the danger, the killing in that event would not be unlawful, and therefore in none of the instances mentioned would the slayer come within the definition of murder, in that the killing would not "The statute law of this State on the subject of be unlawful; but whenever the killing is the result murder reads as follows: 'All murder which shall of a deliberate, willful act, without legal excuse, it be perpetrated by means of poison or lying in is unlawful. This is the first requisite to consti- wait or by any other kind of willful, deliberate tute the crime of murder. and premeditated killing; or which shall be com"The second is, that the killing must be attend- mitted in the perpetration of or attempt to pered by malice, expressed or implied. Malice, as gen-petrate, any arson, rape, robbery or burglary shall erally understood, signifies spite, hatred, ill will be deemed murder of the first degree, and all or grudge, but the law imputes malice to any other kinds of murder shall be deemed murder reckless, cruel act, designed to do harm or injury of the second degree, and the jury before whom to another. Hence, if one kills another in a wan- any person is tried for murder shall, if they find ton disregard of his rights or safety, although he him guilty thereof, ascertain in their verdict whebore him no personal ill will, but committed the ther it be murder of the first or of the second deact in giving vent to a devilish disposition, the gree.' The only kind of murder of the first delaw will imply the necessary malice to constitute gree with which we are concerned in the trial the crime of murder. Then, whenever it is made of this case is that designated in the statute as to appear that the killing was unlawful, and that a willful, deliberate and premeditated killing." it was committed with malice aforethought, the crime will be murder. "If there is an intention to kill it is willful; if this intention is accompanied by such Mircum |