latitude permissible in trade, and it is frankly conceded that cahvey is not the fruit of the coffee tree, but a new invention or combination intended as a substitute, and which could not be sold as coffee without fraud. The plaintiffs were guilty of no such deception, but offered the article openly as cahvey, and it was so received and paid for; but this, although a proof of fairness, would seem to be conclusive that they are not entitled to maintain the present suit. If the statutes which regulate the proceedings of councils, and require that appropriations shall be itemized, mean anything, they mean that the money appropriated for the purchase of one article shall not be used to buy another of a different kind, and that if this rule be not followed the contract shall be invalid. It is immaterial that the substituted article is better than that prescribed, that it will answer the same purpose, or that it can be bought at a lower price. The question remains, is it identical? And if that must be answered in the negative, there is a plain excess of power, and the seller cannot recover.

Unquestionably, identity in such cases depends on the common use of language as employed in trade, and commodities which pass in commerce under the same name may be regarded as identical, although adulterated, or containing ingredients which are chemically or botanically different; and if the referee had found in this instance, on sufficient grounds, that cahvey was coffee, or sold as such by dealers in the fair and ordinary course of business, we should have acquiesced in his decision. He has not found this, but something entirely different; that one beverage is not unfrequently substituted for the other in hotels, restaurants, and private families; that some persons deem it preferable; and that it is not only good enough for the inmates of an aimshouse, but preferred by some consumers whose position enables them to choose. Such considerations might have had much weight if urged when the appropriation was before councils, or subsequently when the question arose whether the plaintiff should be paid; but they are foreign to the point presented by this suit,-is cahvey the commodity which the board of guardians were authorized to buy?

The relation of the various departments of the city government is one of agency defined by statute, and all persons who deal with them are bound to take notice of the measure of their authority, and that every act or contract that exceeds it is invalid. Either the instructions given by councils for the expenditure of the money appropriated for municipal purposes must be followed, or they may be disobeyed. They certainly have not been observed in the present instance; and, if the departure from them be sanctioned for the reasons assigned by the plaintiff, a regulation which was meant to be imperative may be disregarded with impunity whenever the jury or referee to whom the case is submitted are of opinion that the variance is trivial, and not attended with injurious consequences.

It is, indeed, contended on the plaintiff's behalf, and found by the referee, that what is meant by the appropriation is "coffee" as a beverage for the use of the almhouse, and that the board of guardians consequently had a discretion as to the materials of which it should be made, and might procure any ingredients that would produce a drink resembling coffee in taste, color, and smell. “Burnt rye" is, as the referee informs us, used economically by some persons for that end, and therefore the guardians might have regaled the inmates of the almhouse with a decoction of burnt rye, or they might have substituted chicory, or, as we may infer, roasted beans or peas. Had a sum certain been appropriated to supply the almhouse poor with breakfast, including tea and coffee, it might have been argued with some plausibility that what councils had in view was the beverage, and not the leaf or berry from which it was prepared. Such is not the language of the appropriation, which, on the contrary, specifies the articles themselves, "rice, coffee, sugar," etc.,

without reference to what might be made out of them by the culinary art. The case is not one for nice distinctions, but for a straightforward application of statutes that were intended to secure three things: that councils shall determine how much is to be expended in each year; the use to which the money shall be put; and accuracy and good faith in accounting,—each equally material for the protection of the tax-payer, and to prevent extravagance and malversation. It does not follow that councils must descend in all cases to such minute itemization as was practiced here, and provide that one kind of food shall be purchased instead of another; but, if they do, they must be presumed to have some good reason, and their behest should be obeyed.

It is also said that the bids and contracts for the articles purchased by the guardians, including cahvey, were read and awarded in the presence of a committee of councils, and approved by them, and that their sanction operated as a ratification, even if there was no previous command. We are, however, of the opinion that the object of the legislature in requiring the presence of the committee was supervision, to secure the observance of the course prescribed by councils, and not to open a loophole for evasion. The duty of the committee was to see that the path marked out by law was followed, and they could no more direct the guardians to substitute cahvey for coffee, than they could have authorized the purchase of chocolate or of any other article not specified in the appropriation.

If, as we were told with much earnestness and feeling during the argument, the view above taken will prevent the collection of money which is honestly due, it is a cause for regret, but cannot justify the disregard of a rule made for a beneficial end, in which the citizens of Philadelphia are deeply interested. The responsibility of determining whether the city has received value, and should satisfy the plaintiff's demand aside from contract, rests with councils. The question before us is purely legal, and we think the law is with the defendant.

The exceptions are sustained, and the award of the referee set aside, and case referred back to the referee.

To the supplemental report of the referee exceptions were filed in accordance with the above opinion, and the plaintiff filed exceptions thereto. The court dismissed these exceptions, confirmed the supplemental report, and entered judgment in favor of the defendant on the award in that report; whereupon the plaintiff took this writ, assigning for error the action. of the court in sustaining the defendant's exceptions to the report of the referee.

John W. Patton, for plaintiff in error.

Chas. B. McMichael and Chas. F. Warwick, City Sol., for defendant in

error.

PER CURIAM. The opinion of the learned judge in disposing of the exceptions to the report of the referee fully justifies the conclusions at which the court arrived, and on that opinion the judgment is affirmed.

DAY v. NEW ENGLAND MUT. LIFE Ins. Co.

(Supreme Court of Pennsylvania. February 15, 1886.)

ATTACHMENT-LIFE INSURANCE FUND.

An attachment execution will not lie against a fund in the hands of a life insurance company, payable to the legal representatives of the insured under the terms of the policy, by reason of the death of the beneficiary named therein, upon a judgment obtained against the insured during his life-time.

Error to common pleas No. 4, Philadelphia county.

This was an attachment execution issued against the New England Mutual Life Insurance Company, as garnishees, upon a judgment obtained by A. C. Day against James H. Bound for $546.08. On the trial in the court below the following facts appeared:

On

James H. Bound took out a policy of insurance in the New England Mutual Life Insurance Company upon his life, in the sum of $2,000, payable to his wife. On October 20, 1883, A. C. Day obtained a judgment against the said Bound in the sum of $546.08, for want of an affidavit of defense. April 16, 1884, an attachment execution was issued against the New England Mutual Life Insurance Company, as garnishees of the defendant. At this date the defendant was a widower, and so remained to the date of his death, which occurred June 8, 1884, at which time the policy was outstanding and in full force, and the original beneficiary remained unchanged therein. At this date there was due upon the policy the sum of $1,962.12.

These facts were found by the jury in a special verdict as follows:

"If the court be of the opinion, upon the above facts, that the plaintiff is entitled to recover, then judgment to be entered for the plaintiff, and that there is in the hands of the garnishee $1,962.12; otherwise judgment to be entered for garnishees non obstante veredicto."

The court subsequently entered judgment for the defendant upon the special verdict; whereupon plaintiff took this writ, assigning for error this action of the court.

F. F. Brightly, for plaintiff in error.

Under acts of June 13, 1836, and June 16, 1836, an attachment execution binds everything which comes into the hands of the garnishee until plea pleaded. Benners v. Buckingham, 5 Phila. 68; Mullen v. Maguire, 1 Wkly. Notes Cas. 577; Deginther's Appeal, 83 Pa. St. 337. The policy of insurance was itself attachable. Elliott's Appeal, 50 Pa. St. 80. A check payable at a future day is attachable, (Fulweiler v. Hughes, 17 Pa. St. 440; Walker v. Gibbs, 2 Dall. 211; Franklin Fire Ins. Co. v. West, 8 Watts & S. 350; Coates v. White, 39 Leg. Int. 60;) and a promissory note not yet due, (Kieffer v. Ehler, 18 Pa. St. 388; Kent v. Navigation Co., 1 Trɔub. & H. 940; Day v. Zimmerman, 68 Pa. St. 72;) so is rent falling due after service of writ, (Derham v. Berry, 5 Phila. 475.) It is a chose in action belonging to the assured. Keller v. Gaylor, 3 Ins. Law J. 303; Bliss, Ins. 526. Policies are securities for money,-valuable choses in action,-which can be sold at public or private sale, and are included in the general words "personal estate or property." Elliott's Appeal, 50 Pa. St. 80; Stokoe v. Cowan, 7 Jur. (N. S.) 901. The proceeds of a policy on testator's life pass under a bequest of "any money he might die possessed of, or which might be due and owing to him at the time of his decease." Petty v. Willson, 4 Ch. App. 574; McCord v. Noyes, 3 Bradf. 139; Bliss, Ins. 540. A policy passes under a bequest of "debts and debentures." Phillips v. Eastwood; Lloyd & G. Cas. t. Sugd. 270. A life policy, while the insured is still alive, may be reached and made to apply on a debt due from the owner. Bliss, Life Ins. 592; citing Anthracite Ins. Co. v. Sears, MSS. Sup. Ct. Mass. An attachment is an equitable assignment of the thing attached. It puts the attaching creditor in the same relation to the garnishee as was occupied by the defendant before the attachment was laid. Reed v. Penrose, 36 Pa. St. 229; Fessler v. Ellis, 40 Pa. St. 248; Manigle's Estate, 32 Leg. Int. 83; Selfridge's Appeal, 9 Watts & S. 55; Patten v. Wil

son, 34 Pa. St. 299; Strong v. Bass, 35 Pa. St. 333. As to assignability of life policies, see Amer. Law Reg. December, 1885.

Lewis Stover and Samuel C. Perkins, for defendants in error

Cited Bunn's Appeal, 14 Wkly. Notes Cas. 193; Peebles v. Meeds, 96 Pa. St. 150.

GREEN, J. The wife of the assured having died during his life, the fund attached may be regarded as if it were due upon an ordinary policy payable upon the death of the assured. This policy was not in any circumstances payable to the assured himself, nor to any one during his life. It was only payable after his death, and, as it was never assigned, it was payable only to his executors or administrators. No title to have the fund ever existed except in the legal representatives of the deceased. No action could by any possibility have been maintained for the recovery of the money by the deceased in his life-time, nor by any other persons except upon the condition that he had first died. His death was simply and absolutely indispensable to the existence of any right of action on the policy. More than this, if the assured had voluntarily surrendered the policy at any moment before his death, or if it has become forfeited by breach of condition, no right of action would ever have existed even in his legal representatives. Still more, at no time during his life could the proceedings upon the attachment have been brought to final judgment in favor of the attaching creditor, because it could never be known until the death of the assured had actually transpired whether any money would become due upon the policy. The law regarding attachments contemplates and provides for actual proceedings resulting in judgment for one party or the other, not for an entire suspension of proceedings for an indefinite and uncertain period. A policy effected at the age of 21, payable at death, might not become payable in fact for 60 or more years. Can it be that an attaching creditor upon such a policy could demand the judgment of a court against the company as garnishee, payable at the death of the assured, or, as an alternative, claim that the court should suspend all proceedings until the assured shall die? It is incredible. No judgment could be given in advance of death, because no court could possibly know for what amount the judgment should be rendered, nor whether any amount would ever become due. On the other hand, an order to suspend proceedings during the life of the assured is so entirely at war with the whole theory of legal process to enforce remedies, so unheard of in the practice, that it has neither precedent to sustain it, nor any sound principle to sanction it.

But, apart from these objections, which seem to be insuperable at the very first moment when the money does become due on such a policy as this, it is due and belongs to the legal representatives of the assured, and is of course assets in their hands for the payment of all his debts. There is not a single instant of intervening time after his death, and be fore the rights of his representatives accrue, during which a previously issued attachment can fasten upon the fund upon the theory that it is his.

While it is his in the sense that his representatives may have it

derivatively from him, their title to it is peculiar to themselves, and immediately and necessarily inures to the benefit of all who are interested in the decedent's estate, whether as creditors or distributees.

It is argued that a life policy is assignable by the assured, and therefore ought to be regarded as attachable as his. The argument is not sound, regarded even as a general proposition, because things are not necessarily attachable because they are assignable. Almost every form of property or right, whether in esse or in posse, is assignable. But many things are not attachable, though they are in present existence. Thus wages of labor and money in the hands of an officer of the law are not attachable, the one by force of a statute, and the other under the decisions of the courts. So a balance of money due to a defendant under the exemption law, and in the hands of his attorney, is not attachable, (Gery v. Ehrgood, 31 Pa. St. 329;) nor an executor's commissions, (Adams' Appeal, 47 Pa. St. 94;) nor the fees due a public officer, (Hutchinson v. Gormley, 48 Pa. St. 270;) nor money granted by the states for losses during the war, (Gillan v. Gillan, 55 Pa. St. 430.) Other cases might be mentioned, but it is unnecessary.

Deginther's Appeal, 83 Pa. St. 337, was cited, but it has no application. It decided nothing more than that the husband, as a distributee of his wife's estate, was entitled to his share of the proceeds of a policy effected by her on his life, and, she having died first, his representatives were entitled to receive his share upon his death. entire conformity with the principles above stated.

PRATT v. PAULES and others.

The decision was in
Judgment affirmed.

(Supreme Court of Pennsylvania. March 8, 1886.) SALE-ACTION FOR PRICE-DEFENSE-INFERIOR QUALITY.

A. contracted with B. to deliver certain car-loads of slate at Slatington, for shipment to New York, and thence to be sold for shipment to Australia. The slate was to be of first-class quality, and "free from scabs and gray-backs. A. delivered the slate as agreed, but upon their arrival in New York B. claimed that they were not according to contract, and withheld part of their price. B. took C., a part owner of the quarry, with him to examine the slate, and alleged that they had together represented to the purchasers that they would be responsible for any unusual percentage of breakage, and loss for inferiority of quality in the shipment to Australia. There was no evidence that C. was the agent of A., little evidence that A. had ratified his acts, and no evidence of the condition of the slate upon arrival in Australia. Held, it was not error for the court to charge the jury that B. could not withhold part of the price; that it was proper to charge that if the slate was not of firstclass quality, "free from scabs and gray-backs," a deduction should be made for B.'s damages by reason thereof; and that the finding of the jury that the slate, upon delivery at Slatington, was according to contract, was conclusive. Error to common plea, Lehigh county.

Foreign attachment in case by John Paules & Co. against D. C. Pratt, with summons to Jesse Labar as garnishee. On the trial in the court below the following facts appeared: D. C. Pratt, the defendant, a slate dealer in New York city, addressed the following letter to John Paules & Co., who were lessees of a slate quarry at Slatington, Lehigh county, Pennsylvania: