author: Pee Ctxeiam,

text:
    McKeesport v. Pittsburg, McKeesport & Connellsyille Railway Company, Appellant;

      Street railways — Paving streets — Ordinance—Municipalities.
    Where a city ordinance gives to a street railway company the right to lay tracks upon certain streets specified by name, and further provides that “on all highways traversed- by said company which shall hereafter be improved, said company shall pay the cost of the improvement between-its tracks and lines of tracks, and one foot on each side thereof,” the ordinance applies to the improvement of all streets occupied by the company; and not merely to those enumerated in the ordinance.
    Argued Nov. 2, 1905.
    Appeal, No. 92, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1903, No. 518, for plaintiff on case stated in suit of McKeesport v. Pittsburg, McKeesport & Connellsville Railway-Company.
    Before Mitchell, C. J., Fell, Brown, Mbstrezat, Potter, Elkin and Stewart, ,TJ.
    Affirmed.
    Case stated to determine liability for street improvement.
    Frazer, P. J., filed the following opinion :
    This action is to recover from defendant the sum of- $5,014.17 with interest from August 1,1901, being a proportionate share of the cost of improving Cherry lane in plaintiff city. .
    The facts agreed upon by the parties and filed February 24, 1905, in substance show that defendant company is an incorporated street railway company, the successor of and owning the franchises of the Citizens’ Passenger Railway Company,"the McKeesport and Wilmerding Railway Company and the'McKeesport, Wilmerding and Duquesne Railway Company. • On or about October 15, 1894, the supervisors of Versailles township in an agreement in writing authorized the McKeesport and Wilmerding Railway Company to occupy Cherry lane, which highway at that time was situate in Versailles township. In accordance with the consent so granted that company entered upon Cherry lane and constructed thereon its railway tracks, and since that time the same have been maintained and used by the McKeesport and Wilmerding Railway Company during its existence and since its organization by defendant. The portion of Versailles township in which Cherry lane is located became a part of the city of McKeesport on July 28, 1897. By ordinance of the city of McKeesport, passed and approved on April 4, 1898, the McKeesport, Wilmerding and Duquesne Railway Company, for the purpose of extending its lines, was granted permission to use and occupy with its tracks certain additional streets in plaintiff city, Cherry lane not being one of the streets mentioned in that ordinance. That ordinance, in consideration of the rights granted, imposed certain duties upon the railway company, the portion applicable to this controversy being as follows: “ On all improved streets occupied under this ordinance, said company shall, at its own expense and cost, restore and repave the same in a good and workmanlike manner, and on all unimproved streets shall lay its ties on a bed of broken stone not less than eight inches deep, and place broken stone between the ties and to the top thereof, and shall at all times keep the space between its tracks and lines of tracks and one foot on each side of its tracks in good and complete repair. On all highways traversed by said company which shall hereafter bo improved said company shall pay the cost of the improvement between its tracks and lines of tracks and one foot on each side thereof.”
    On July 9,1900, an ordinance was passed by the councils of plaintiff city and approved July 14, 1900, providing for the grading, paving and curbing of Cherry lane between certain points, and in accordance therewith that street was graded, paved and curbed, Avhich was the first improvement of the street. The proportionate cost of the improvement on the portion of the street occupied by defendant between its tracks and for a foot on each side thereof is $5,014.07. This sum plaintiff claims is due it from defendant by reason of the terms of the ordinance of April 4, 1898; the clause relied upon to support this claim being quoted above. The agreement of the parties above referred to also provides that if the court shall be of the opinion that plaintiff is entitled to recover from defendant under the facts agreed upon for a portion of the cost of the improvement of Cherry lane, judgment shall be entered in favor of plaintiff and against defendant for the sum claimed Avith interest; if of opinion that plaintiff is not entitled to recover, then judgment to. be entered for defendant. The sole question here is the effect of the clause which provides that the company shall pay the cost of the improvement between its tracks and lines of tracks and one foot on each side thereof of all highways traversed by it which shall hereafter be improved, plaintiff’s contention being that this clause applies to all streets in the city upon which defendant’s tracks are located, while defendant’s contention is that the clause applies merely to streets included in the ordinance of which it is a part. The constitution provides that, “ No street passenger railway shall be constructed within the limits of any city, borough or township without the consent of its local authorities.” This language is also incorporated in the street railway act of 1889. Under these provisions a municipality may undoubtedly impose reasonable conditions to a right granting the use of its streets for street railway purposes: Allegheny v. Railway Co., 159 Pa. 411. That a requirement that the company in consideration of the privilege of using certain streets shall pay the cost of paving such streets between its tracks and one foot on each side thereof is a reasonable condition, is not denied. Therefore, if the ordinance of April 4, 1898, applies to all streets upon which defendant’s tracks are laid, judgment must be entered for plaintiff. Giving the words used in the ordinance their natural, plain and ordinary signification, they are certainly broad enough to impose the duty upon defendant of paying a proportionate share of the cost of improving all highways upon which its tracks are laid, and that it was intended they should do so seems clear. After requiring defendant to repave all improved streets and leave in good condition all unimproved streets “ occupied under this ordinance,” it is further provided in another separate and distinct clause that defendant shall pay a proportionate cost of the improvement of “ All highways traversed by said company which shall hereafter be improved.” This language is not doubtful and, in the absence of any provision limiting its application to streets included in the ordinance or any words indicating an intention to do so, the language used should be given its ordinary meaning. The city having the power to impose conditions under which streets shall be used, and in plain and unmistakable words having prescribed the conditions under which the extension provided for in the ordinance of April 4, 1898, should be built, and those conditions having been accepted by defendant company, it must comply therewith and discharge the burden they place upon it. The permission given by the supervisors of Versailles township, it seems to us, has no bearing upon this case, there being nothing in that permission which prevents the city from imposing additional burdens upon the company in the event of further privileges being given it.
    And now, April 6, 1905, it is ordered that judgment be entered in favor of plaintiff and against defendant for the sum of $5,816.22, with costs of suit.
    Judgment for plaintiff on case stated.

      Error assigned was the judgment of the court.

      James II. Beal, of Read, Smith, Shaw Beal, with him Robert R. Watt, E. P. Douglass, and*A Paul Pife, for appellant.

      W. B. Rodgers, with him W. E. Newlin, for appellee.
    January 2, 1906 :
   Pee Ctxeiam,

Judgment affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Pur, CtrniAM,

license: Public Domain

text:
    Lindberg, Appellant, v. National Tube Company.

      Negligence — Master and servant — Place of employment — Notice of danger — • Contributory negligence — Nonsuit.
    In an action by a workman against his employer to recover damages for injuries sustained in a rolling-mill, a nonsuit is properly entered, where it appears that the injuries were caused by a defective crane, that the plaintiff had been working near the crane, although not at it, for over three months, that the defect in the crane was visible to every one, and must have been known to plaintiff, that the defendant was not notified of the danger, and that no person ever directed the plaintiff particularly to work in the position in which he was injured, knowing it to be a dangerous one.
    Argued Nov. 2, 1905.
    Appeal, No. 182, Oct. T., 1905, by plaintiff, from order of C. P. No. 8, Allegheny Co., Nov. T.,

      1902, No. 669, refusing to take off nonsuit in case of Charles F. Lindberg v. National Tube Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.-'
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.
    Evans, J., filed the following opinion :
    Plaintiff’s evidence showed that he was in the employ of the defendent company as a rougher at the rolls. Near where the plaintiff worked was situated a hydraulic crane, which was used for lifting and moving the rolls when they were taken out for cleaning or repairs. A socket in which the upright of the crane revolved had become worn in such a way that when the boom approached the position where the plaintiff worked, the upright of the crane leaned in that direction, which caused the boom to move around automatically for nearly one-half of its circuit, and it would vibrate back and forward until it finally settled at the lowest point, or directly opposite the direction in which the upright, the mast, leaned. The crane had been in this condition for some three or four months, during which time, and long prior thereto, the plaintiff had worked in the immediate vicinity of the crane. The boom of the crane, in passing over the space through which it moved when moving automatically by reason of the defect causing the inclination of the mast, passed over the spot where the plaintiff worked, and at the time in question, loaded with a roll just taken from the mill, it struck the hand of the plaintiff which had hold of some instrument with which he was working, and crushed it. The plaintiff testified that he did not know of this defect in the crane, causing it to move through considerable space automatically in the neighborhood of where he worked. A motion for nonsuit was allowed on the ground of contributory negligence on the part of the plaintiff. As we said above, the plaintiff testified that he did not know of the existence of this defect in the crane; but it was open and apparent to any person who opened his eyes, that that defect was there; the crane was in regular use; other workmen called by the plaintiff saw this defect, saw that the crane moved without force being applied to it; and, assuming that the plaintiff did not know, as he testified that he did not know, he must have closed his eyes to what was apparent in the immediate vicinity of his work. If he did not know it, he ought to have known it; because a workman may not shut his eyes to apparent danger and go on for months working in the vicinity of a dangerous machine which is liable at any time to pass over the spot where he is working and strike him, and yet hold liis employer liable for any injury occasioned by such a danger.
    The duty of the employer here was not to furnish safe tools with which to work, because the plaintiff was not injured in working with this crane, but it was to furnish a safe place in which to work; and with the slightest care upon plaintiff’s part, he could have known for three months prior to the date of this accident that the position in which he was working' was a dangerous one. He closed his eyes to that fact. There is no evidence that he or anybody else ever notified the employer of this danger, or that any person ever directed hixn particularly to work in that position, knowing it to be a dangerous one.
    The motion to take off the nonsuit is refused.

      Error assigned was refusal to take off nonsuit.

      Rody B. Marshall, with him Thomas M. Marshall, for appellant.

      W. B. Rodgers, with him Thos. Ewing, for appellee, was not heard.
    January 2, 1906 :
   Pur, CtrniAM,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Brown,

text:
    Schofield v. Turner, Appellant.

      Statute of limitations — Mutual insurance company — Assessments—Receivers.

    The statute of limitations begins to run in favor of a member of a mutual insurance company against his liability to pay an assessment to the receiver of the company from the date of the decree of court authorizing the assessment, and not from the date of the declared insolvency of the company.
    Argued Nov. 1, 1905.
    Appeal, No. 129, Oct. T., 1905, by defendant, from judgment of Superior Court, April T., 1905, No. 111, affirming judgment of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 866, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles S. Schofield, Receiver of the iEtna Mutual Live Stock Insurance Company v. Alfred Turner.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    From the record it appeared that upon the application of the Attorney General, the iEtna Mutual Live Stock Insurance Company was, on June 29, 1895, declared insolvent by the court of common pleas of Dauphin county, and Charles S. Schofield was appointed receiver of the company. On November 18, 1896, the same court authorized the receiver to levy and collect an assessment upon the outstanding policies of the company. The present suit was brought on November 18, 1902. The defendant pleaded the statute of limitations.

      Error assigned was judgment of the Superior Court affirming judgment of the court of common pleas against the defendant.

      W. K. Jennings, with him I). O..Jennings, for appellant.

      Pier Pannals, with him Charles 8. 8ehofield, for appellee.
    January 2, 1906 :
   Opinion by

Mr. Justice Brown,

• A misapprehension of what was decided in Swearingen v. Dairy Company, 198 Pa. 68, is doubtless responsible for this appeal. In that case the proceeding was instituted to compel the payment of balances due by stockholders for unpaid subscriptions to the capital stock of the insolvent corporation. The amount that each stockholder still owed on his stock was twenty-five per cent of its par value, a definite sum, which the company, at any time before its insolvency, might have called upon him to pay; but, until so called, there was no liability to pay, and the statute of limitations could not, therefore, begin to run. On January 5, 1891, when the company admitted its insolvency and executed a deed of assignment for the benefit of its creditors, every stockholder knew that the balance of his unpaid subscription — a fixed sum — might be needed for the payment of the company’s indebtedness, and the representative of the company, its assignee, knew the balance was due. With the liability thus fixed and the right to enforce it established, the statute of limitations began to run from the time of insolvency. The liability of a stockholder being definitely fixed by the amount of his unpaid subscription, the corporation, before insolvency, may enforce it by calling for payment, and an assignee thereafter may at once proceed to reduce the liability to a judgment. This is what was decided in that case, summed up in the following sentence: The light of action of the plaintiff, whatever it was, accrued upon the fact of insolvency of the dairy company shown by the assignment for the benefit of creditors, and the statute of limitations began to run from that date.”

In the case of Franklin Savings Bank to use, etc., v. Bridges, 20 W. N. C. 48, cited by the appellant, it appeared that prior to the execution of the deed of assignment in 1878 the board of directors had laid an assessment for the entire balance due on the subscription to the stock. The right of action accrued at the time the assessment was laid, but the suit to recover the balance was not instituted until more than seven years after the deed of assignment had been executed. In the late case of Cook v. Carpenter, Lipper’s Appeal, 212 Pa. 165, in which the present Chief Justice exhaustively reviews the cases' on the subject of the running of the statute of limitations in suits brought on claims like the present, the same rule is recognized. Speaking of the liability of a stockholder to pay a balance due on his subscription when called for by the company, he says: “ Until such call, there is no obligation on the stockholder to pay. It may never be made. If the enterprise is successful and profitable from the start, or the provision for capital has been larger than actual needs require, the duty of payment is only a reserve duty for possible contingencies, and until they happen, either by calls by the corporation on the subscriptions, or by the rights of creditors, there is no duty of the subscriber to pay, no right of action against him for nonpayment, and no starting point for the statute of limitations.”

The difference between the liability of a member of a mutual insurance company and the holder of capital stock in a corporation on his unpaid subscription seems to be overlooked by the appellant. Just what liability he assumed as a member of the insolvent mutual insurance company does not appear either from the plaintiff’s statement or the affidavit of defense, but we assume it to be on a premium note or under the charter and by-laws of the association. Though the liability of a stockholder is different from that of a member of a mutual insurance company, it cannot be enforced in either case until a right of action accrues upon it, from which time only the statute begins to run. The stockholder, during the .solvency of the corporation, can be called upon at any time by the board of directors to pay the balance due on his stock, but the member of the mutual association makes no such unconditional promise to pay. It is not a promise to pay the whole amount of his premium note, or any sum fixed by the charter or by-laws, but such sum or sums from time to time as may be assessed against him as his portion required for the necessities or losses of his company. How much that portion is cannot be known to him, nor to the company, until, after its necessities or losses have been ascertained, it is enabled to notify him how much he must pay and to demand payment of the same. His liability is not absolute, but conditional, depending upon the necessities .or losses of the company and the demand of its officers. His liability upon his note, if he gives one, is upon assessment and notice of the same after the happening of a contingency upon which the company is authorized to make the assessment on the note, and upon performance by it of the conditions precedent to its right as the holder to enforce payment of the assessed liability; and so it is if the liability arises from an agreement to be bound by the charter and by-laws. The power and the duty of making the assessments are in the company until, upon its insolvency or dissolution, they pass to a receiver. But neither the one nor the other can bring an action without first making the assessment and complying with the conditions upon which the member of the insurance company obligates himself to pay. In Eichman v. Hersker, 170 Pa. 402, the assessment was not made within six years of the date of the policies and the premium note, nor within six years from the date of the losses, the payment of which had created the debt sought to be satisfied by assessment, and it was said by our late Brother Dean, “ Nor is it any answer to say the company was dilatory in levying the assessment. Mere indulgence in levying the assessment will not bar the right; delay in enforcing collection after levy and demand would.” Here there was no delay after levy and demand. That case, and Smith v. Bell, 107 Pa. 352, without more, were conclusive upon the court below in directing judgment to be entered. After referring to Eichman v. Hersker, in Cook v. Carpenter, Dipper’s Appeal, 212 Pa. 165, it is said : “ Distinctions based on the wording of the charters or the statutes under which they were conferred were repudiated and the decision put explicitly on the general principle that the obligation was not to pay at once but upon a future event, the levying of an assessment by the directors, and the statute did not begin to run until such assessment.”

Judgment affirmed.


author: Mr. Justice Bbown,

text:
    O’Donnell, Appellant, v, Vandersaal.

      Deed — Mortgage—Defeasance—Act of June 8, 1881, P. Jj. 81.
    Under the Act of June 8, 1881, P. L. 84, a deed absolute upon its face cannot be reduced to a mortgage, unless a defeasance is made at the time the deed is made, and is in writing, signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor, and recorded in the recorder’s office within sixty days from its execution. A grantee in such a deed cannot be declared in equity a trustee ex maleficio, where no fraud is charged.

      Argued Nov. 1, 1905.
    Appeal, No. 163, Oct. T., 1905, by-plaintiff, from decree of O. P. No. 2, Allegheny Co., July T., 1905, No. 63, dismissing bill in equity in case of John H. O’Donnell v. S. W. Vandersaal and Homer L. Castle.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for a reconveyance of real estate.
    The bill alleged that the plaintiff was the owner of a certain lot of ground in the city of Pittsburg, upon which he had in course of erection an apartment house; that he was indebted to certain contractors, represented by Homer L. Castle, one of the defendants, as attorney, and was also indebted to S. W. Vandersaal, the other defendant, for certain loans. ' That in April, 1904, he agreed to convey the land in question to Mr. Castle, upon an agreement that he was to hold it as trustee, to secure the payment of creditors he represented; and that he was to complete the building. That afterwards he entered into an agreement in writing (exhibit “ A,” of the bill), with Castle and Vandersaal, which agreement recites that Castle holds the legal title to the land, that the plaintiff, O’Donnell, has an equitable interest in it, and that Vandersaal holds a mortgage on it, and by which it is agreed that Castle shall borrow $45,000 on the land, and with the proceeds pay the creditors for whom he was trustee, and a portion to Vandersaal; and that thereupon Castle should convey the land to Vandersaal, subject to the mortgage, and that Vandersaal should give to Castle a mortgage, the proceeds of which were to be divided between the parties represented by Castle and Vandersaal, and that the rents should be equally divided between Vandersaal and Castle, and that the plaintiff might purchase the property subject to the two mortgages above mentioned, at any time within eight-months from the date of the article, upon paying to them, and each of them, all their claims.
    The agreement designated as exhibit “ A ” was as follows :
    “ Homer L. Castle holds the title to a piece of ground in the nineteenth ward of the city of Pittsburg, state of Pennsylvania, consisting of lot No. 73 and part of lot No. 72 in Mellon’s orchard plan of lots, fronting ninety-four feet on Euclid avenue, and extending 61.86 feet along Margaretta street, which property J. H. O’Donnell convoyed to the said Ilomer L. Castle by deed dated and in which property the said O’Donnell has an equitable interest, and against which property S. W. Vandersaal holds a mortgage.
    “ Said Homer L. Castle holds the above title as trustee or attorney for certain clients named in his contract with J. H. O’Donnell, dated April 18, 1904.
    “ Now it is agreed between Homer L. Castle, J. H. O’Donnell and S. W. Vandersall as follows : That said Homer L. Castle shall borrow on his mortgage and on said premises from the Fidelity Title & Trust Company of Pittsburg the sum of forty-five thousand ($45,000) dollars, for three years, at 5.4 per centum per annum, payable semi-annually, and that after deducting all expenses of procuring the loan, the said Homer L. Castle shall pay to the following named persons the following amounts in satisfaction on their liens or claims upon said property.
    -*• -*• # Sfc #
    “ Said distribution having been made, the said Castle shall convey to S. W. Vandersaal his title and interest to said premises subject to the said $45,000 mortgage ; and the said Vandersaal at the time of such conveyance shall make and execute to the said Homer L. Castle a mortgage in the sum of $14,500, which is recited as a purchase money mortgage, to be disposed of as hereinafter provided.
    “ Said S. W. Vandersaal shall also deliver to the said Homer L. Castle a proper instrument in writing showing that he holds said premises one-half for himself and the other half for the said Homer L. Castle, or those whom he may represent as trustee.
    “ Said Homer L. Castle shall hold said second mortgage, and when the same can be sold, all the proceeds from said mortgage shall, after payment to S. W. Vandersaal, of $819.81 be divided equally between the said S. W. Vandersaal and the said Homer L. Castle, and go as credits upon the sums due the clients of the said Castle, and to S. W. Vandersaal.
    “ It is further agreed that while the said S. W. Vandersaal holds said property, all the net rents received shall be equally divided between the said Vandersaal and the said Castle, to be applied to the liquidation of their claims upon said property.

      “And the said S. W. Vandersaal and the said Homer L. Castle agree that the said J. H. O’Donnell may purchase the property above described, subject to the above mortgage of $45,000 and the mortgage of $14,500 at any time within eight months from this date, upon paying to them, or each of them, all their claims, interest and expenditures on account of the said premises, less all amounts received theretofore and applied to the payment and extinguishment of their debts from any source.”

      Error assigned was decree dismissing the bill.

      Marion H. Murphy, for appellant.
    The case is ruled by Goodwin v. McMinn, 193 Pa. 646 : Seichrist’s App., 66 Pa. 237.

      Karl F. Overholt, with him Willis F. McQooh and Stone ¿- Stone, for appellee.
    If it is a mortgage, as the plaintiff alleges in his bill, it is not valid, as it was never acknowledged or recorded, and the act of June 8, 1881, makes such a writing ineffectual to reduce a deed absolute to a mortgage : Sankey v. Hawley, 118 Pa. 30 ; Lohrer v. Russell, 207 Pa. 105; Crotzer v. Bittenbender, 199 Pa. 504.
    And this act of June 8, 1881, is binding in equity as well as in law: Fuller v. East End Homestead Loan & Trust Co., 157 Pa. 646.
    There are no facts alleged or shown in plaintiff’s bill from which the defendants could be found to be trustees ex maleficio : Barry v. Hill, 166 Pa. 344; Williard v. Williard, 56 Pa. 119 ; Grove v. Kase, 195 Pa. 325.
    January 2, 1906:
   Opinion by

Mr. Justice Bbown,

We assume the appellant intended to aver that he had executed and delivered to Homer L. Castle, one of the appellees, a deed for the premises described in the first paragraph of his bill, but no such material averment appears anywhere in it. In the exhibit attached to it there is an acknowledgment by Castle that O’Donnell had conveyed the lots to him by a deed, the date of which, however, is not given. In the second paragraph of the bill there is an averment that the legal title was transferred to Vandersaal, but when or by whom does not appear. The situation, which ought to appear clearly on the face of the bill, undoubtedly is that O’Donnell conveyed to Castle, who in turn conveyed to Vandersaal, and, by the agreement of August 11, 1904, to which all three were parties, O’Donnell avers that the deed now held by Vandersaal has been reduced to a mortgage and that he is “ entitled to the legal rights of a mortgagor in connection therewith. ”

By the Act of June 8, 1881, P. L. 84, no defeasance to any deed for real estate, regular and absolute upon its face, shall have the effect of reducing it to a mortgage, unless the defeasance is made at the time the deed is made and is in writing, signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor, and recorded in the recorder’s office within sixty days from its execution. As the date of the deed nowhere appears, we cannot tell whether the agreement was executed at the time it was made, but, even if of the same date, it was not acknowledged and recorded within sixty days from its execution. In construing the act of 1881, we said, in Sankoy v. Hawley, 118 Pa. 80 : “ There is now but one method left by which a deed absolute can be reduced to a mortgage, and that method, in this case, has not been pursued. The defeasance must not only bo in writing, and of the same date as that of the deed, but it must also be ‘ signed, sealed, acknowledged and delivered by the grantee in the deed to .the grantor; ’ furthermore, it must be recorded in the office for the recording of deeds, and mortgages in the county where the land is situated, within sixty days from the execution thereof. If we are to give effect to this act, an act in no wise ambiguous, it is certain the defeasance offered on part of the defense was properly rejected, for it was neither sealed, acknowledged nor recorded. ” Every attempt since made to evade the act has been thwarted by a repetition of these words, and by this time it ought to be fully understood that a deed can be impeached and reduced to a mortgage only by the execution of a written defeasance bearing even date with the deed, signed, sealed, acknowledged, delivered and recorded. The last clause in the agreement providing that O’Donnell might purchase the property from the appellees within eight months, on terms and conditions therein stated, does not help him. This is nothing more than an option given him, and, even if a valid one that he could have exercised within eight months, there is no averment by him that he accepted it and tendered performance.

But it is contended by the appellant that if the agreement of August 11, 1904, does not have the effect of reducing his deed to a mortgage, the appellees ought to be declared trustees ex maleficio, and Goodwin v. McMinn, 198 Pa. 646, is cited in support of this. In that case the decree below, as here, was on a demurrer to the bill, but there was a distinct allegation of fraud in the procurement of the deed. The sixth paragraph of the bill set forth the specific fraud that had been practiced upon Shaw by McMinn, his grantee. In overruling the demurrer and sending the case back for hearing we said, after reciting the averments of the bill: “ The allegation was that the deed was procured by fraud, in that, at the time it was given a large part of McMinn’s liability had already been discharged by money then in his hands, and this unknown -to Shaw. ” In this bill there is no averment of fraud in the procurement of the deed. There is not even an averment that the appellees have not performed their part of the written agreement of August 11, 1904. True, there is an allegation that certain promises outside of it have not been kept, but this alone would not create a trust ex maleficio. In the absence of any averment of such fraud on the part of the appellees as would make them trustees ex maleficio, the second contention of the appellant is no more tenable than his first. His remedy, if he has any on the facts averred in his bill, is not this proceeding on the equity side of the court.

Decree affirmed and appeal dismissed, with costs to appellees.


author: Mr. Justice Elkin,

text:
    Hays, Appellant, v. Forest Oil Company.

      Oil and gas lease — Covenants—Royalties—Condition precedent.

    An oil and gas lease provided as follows: “This lease to be null and void and no longer binding on either party if a well is not completed on the premises within three months from this date, unless the lessee shall thereafter pay monthly to the lessor five hundred dollars per month for each month’s delay in completing said well; each payment to extend the time for completion for one month and no longer.” Held, that the lessee did not covenant to pay a rental of $500 per month until a well should be completcd, or the lease surrendered and canceled, but that the monthly payment was only a condition precedent and necessary to maintain the vitality of the lease until a well should be completed. Glasgow v. Chartiers Gas Co., 152 Pa. 48, followed.
    Where the lessor of an oil and gas lease has treated a well as completed and has accepted royalties for two years and a half, he cannot be heard to say that the well was not completed in the first instance.
    Argued. Nov. 2, 1905.
    Appeal, No. 172, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 1001, on verdict for defendant in case of L. O. Hays, Sr., v. Forest Oil Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on an oil lease. Before Frazer, P. J.
    The facts appear by the opinion of the Supremo Court.
    Frazer, P. J., charged, inter alia, as follows :
    [As we understand this agreement, defendant is not liable for the $500 rental, in this action at least; under the clause we have just read to you, if the defendant failed to complete the well within three months that was the end of the lease; it required no forfeiture; it required no action upon the part of the plaintiff to end the term and enable him to get possession of his property; that was the end of the lease, and plaintiff had the right to go upon the land, take possession of it and oust defendant. As we read the contract, there is no covenant or agreement upon the part of Mr. Thompson to pay the $500 ; he does not agree to pay that sum, but, under the lease if the well was not completed within the three months, lessee might secure an extension of another month by paying $500. There is nothing, however, in the contract requiring him to do so.
    If the well was not completed within the three months and he ' did not see fit to continue the lease he could surrender it by failing to make the payment. As we understand that clause, and reading it in connection with the case of Glasgow v. Gas Company, which you have heard counsel read, we are of the opinion, plaintiff, under the circumstances of this case, is not entitled to recover the rental here sued for.] [2]
    [In addition to what we have said, there is another reason set up by defendant which, in our opinion, is sufficient to prevent- plaintiff from recovering. That is, the completion of the well; who had the right to determine when the well was completed ? In the absence of bad faith upon the part of the lessee, we think that was his right. If there was any bad faith it would, perhaps, be a question for the jury; but without that it seems to us the driller, the lessee in this case, would have the right to say whether -the well was completed or not. In a recent case the question was as to what was meant by “ producing oil in paying quantities,” and the Supreme Court used this language, and I see no reason why the principle laid do'wn there should not be applicable to this case:
    “ So long as the lessee is acting in good faith on business judgment, he is not bound to take any other party’s judgment, but may stand upon his own. Every man who invests his money and labor in a business does it on the confidence he has in being able to conduct it in his own way. No court has any power to impose a different judgment on him, however erroneous it may deem his to be. Its right to interfere does not arise until it has been clearly shown that he is not acting in good faith on his business judgment, but fraudulently, with intent to obtain a dishonest advantage over the other party to the contract.”
    [We do not recall any testimony in this case that would indicate any intent on the part of the lessee to obtain a dishonest advantage over the plaintiff. It appears the well was drilled as deep as .other wells in that hundred foot sand, that in other wells in that field the pay streak was from the top of the sand, and the weight of the testimony is clearly in favor of there being but one pay streak in that sand, and that the upper pay streak. Lessee having invested his money in the venture, and being liable for any expense there was in drilling, had a right to determine when the well was completed, and having determined that it was completed after going below the first pay streak, he was not obliged to take any risks for benefit of somebody else, so long as he acted in good faith.] [2]
    [We therefore direct you to render a verdict in favor of the defendant.] [4]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (2-4) above instructions, quoting them.

      D. F. Patterson, with, him Charles 8. Crawford, for appellant
    cited: Aderhold v. Oil Well Supply Co., 158 Pa. 401; Gas Co. v. George, 161 Pa. 47; Wilson v. Philadelphia Co., 210 Pa. 484.

      J. MeF. Carpenter, with him Robert W. Cummins, for appellee
    cited: Glasgow v. Chartiers Gas Co., 152 Pa. 48; Snodgrass v. South Penn Oil Co., 47 W. Va. 509 (85 S. E. Repr. 820) ; Van Etten v. Kelly, 66 Ohio, 605 (64 N. E. Repr. 560).
    January 2, 1906:
   Opinion by

Mr. Justice Elkin,

The plaintiff has proceeded in assumpsit to recover for monthly rentals alleged to be due under the provisions of a lease to mine for and produce petroleum and natural gas from a certain tract of land located in the county of Butler.

The plaintiff’s right to recover depends upon the construction of that part of the lease which reads as follows: “ This lease to be null and void and no longer binding on either party if a well is not completed on the premises within three months from this date, unless the lessee shall thereafter pay monthly to the lessor $500 per month for each month’s delay in completing said well; each payment to extend the time for completion for one month and no longer. ” The contention of the appellant is that the lessee covenanted to pay a rental of $500 per month until a well should be completed or the lease surrendered and canceled. The appellee denies that these provisions of the lease should be construed as a covenant to pay a monthly rental, but insists that the payment of the $500 per mouth is only a condition precedent and necessary to maintain the vitality of the lease until a well is completed.

The question involved is practically ruled by Glasgow v. Chartiers Gas Company, 152 Pa. 48, wherein Mr. Justice Williams, construing the provisions of an oil lease which in legal effect and almost similar language to that used in the present lease, said: “ Its legal effect is to confer on the grantee the right to explore for oil on the tract described. If he does not exercise this right within one month, it is. lost to him, unless he chooses to pay one hundred dollars in advance as the price of another month’s opportunity to explore. If he does exercise it, and finds nothing, he is under no obligations to continue his explorations. If he explores and finds oil or gas, the relation of landlord and tenant or vendor and vendee is established, and the tenant would be under an implied obligation to operate for the common good of both parties, and pay the rent reserved. ” It was held in that case that the monthly payment was the means provided in the contract by which the right of the lessor to forfeit the lease could be postponed, but that it was not a covenant to pay a monthly rental which the lessor could assert in an action on the lease.

The learned counsel for the appellant has endeavored to distinguish that case from the one at bar. It is a distinction, however, without a difference. The two leases are almost identical in language and certainly are the same in legal effect. A reversal of the judgment in this ease would mean an overruling of that one. It may be conceded that this is an improvident agreement, but inasmuch as no fraud, mistake or misrepresentation is alleged, the lease must be construed according to its plain meaning. This lease in language too plain to be misunderstood provides that it shall be no longer binding on either party if a well is not completed within three months, unless .the lessee before the expiration of the three months’ period shall pay lessor $500 for each month’s delay in completing said well. Each monthly payment is to extend the time for completing the well one month longer. It will be observed that these monthly payments are connected with and have only to do with the forfeiture of the lease which by its own terms expires in three months from its date if a well is not completed at that time. This provision is a protection to the lessor in order that his property shall not be indefinitely tied up while the explorations are being made. On the other hand, if the lessee has not been able to complete a well within three months and still wishes to continue explorations, he can extend the time for completing the well by paying $500 each month. He does not covenant to pay a monthly rental, but reserves the right to elect to pay $500 a month, rather than forfeit his lease, until the well is completed.

On the other branch of the case the learned court below was clearly right in holding that the lessee had complied with the terms of the lease relating to the drilling of a well and that the lessor could not enforce the payment of a monthly rental on the ground of failure to complete the well. The lessor, before and after the defendant company took over the lease, treated it as a completed well and received the royalties due under the terms thereof from the defendant from February, 1900, to September, 1902. After having treated the well as completed, and having accepted the royalties for so long a period of time, the lessor cannot now be heard to say that the well was not completed in the first instance.

Judgment affirmed.


author: Mr. Justice Fell,

text:
    Flaccus, Appellant, v. West Penn Gas Company.

      Contract — Natural gas — Pressure—Glass works.

    Where a written contract by a natural gas company to supply gas to a glass works, is silent as to the pressure required, and it appears that the gas company during a period of several years prior to the contract had furnished gas to the works at a pressure of one pound, and that this was the standard pressure at which it furnished gas to all other glass works, the company is under no obligation to furnish gas at a higher pressure.
    Argued Nov. 2, 1905.
    Appeal, No. 178, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 947, on verdict for defendant in case of C. L. Flaccus, trading as The C. L. Flaccus Company, v. The West Penn Gas Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a contract in writing. Before Shafer, J.
    The facts arc stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      James Francis Burke, with him Thomas J. Ford, for appellant,
    cited: Dixon-Woods Co. v. Glass Co., 169 Pa. 167; Saltsburg Gas Co. v. Saltsburg Borough, 138 Pa. 250.

      George N. Ohalfant, for appellee,
    cited: United Press v. N. Y. Press Co., 164 N. Y. 406 (58 N. E. Repr. 527) ; Smith v. Loag, 182 Pa. 801; Zoebisch v. Rauch, 133 Pa. 532 ; Fink v. Smith, 170 Pa. 124; Sparks v. Pittsburg Co., 159 Pa. 295.
    January 2,1906:
   Opinion by

Mr. Justice Fell,

This action was to recover for the breach of a written agreement by the defendant to furnish natural gas to the plaintiff’s glass works. The material part of the agreement is as follows : “We hereby agree to furnish natural gas at your glass works at Tarentum, Pa., for the period of one year from this date at seven cents per thousand cubic feet, provided you take at least sufficient gas to run your No. 3 furnace. ... We will furnish a meter and regulator and make connections with your pipe at our own cost.” Gas was furnished at the meter at a pressure of one pound in quantities sufficient to run the whole of the plaintiff’s works, but' it was found that at this pressure not enough gas would pass through the furnace pipes to heat the glass sufficiently. The defendant declined to furnish gas at a higher pressure, and the plaintiff disconnected his works from its line and obtained gas from another company at a higher pressure, at ten cents per thousand. The learned trial judge directed a verdict for the defendant for the reason that, while there was an implied obligation to furnish enough gas to run the No. 3 furnace, the plaintiff had failed to show that he was entitled to gas at a higher pressure than that at which it was furnished.

The dispute was not as to the quantity of gas but as to the pressure at which it should be furnished. The supply of gas at the meter was at all times ample, the plaintiff declined 'to take it unless it was furnished at a pressure which would force enough gas through the burners of the No. 3 furnace to heat it. The contract was silent as to the pressure and the plaintiff, on whom the burden of proof rested, offered no evidence from which it could be inferred that any particular pressure was intended. It was shown by the uncontradicted evidence presented by the defendant that a pressure of one pound was the standard pressure at which it furnished gas to all its customers who operated glass factories, and that during a period of several years before the contract in question was made, gas had been furnished by it to the plaintiff at this pressure under a contract that did not require the use of a meter. There is nothing in the contract, and nothing was shown outside of it, from which it can be inferred that there was an intention to furnish gas at a pressure suited to a particular construction of furnace, or at other than the usual pressure.

The judgment is affirmed.


author: Per Curiam,

text:
    Michalofski, Appellant, v. Pittsburg Screw & Bolt Company.

      Negligence — Master and servant — Contributory negligence — Machinery— Nonsuit.

    A boy over thirteen years of age cannot recover damages from his employer for personal injuries, where it appears that he was injured while trying to remove an obstruction from a machine while in motion, and that in doing so he was not performing any duty for which he was employed, but was meddling with something that was not his business.
    Argued Nov. 2,1905.
    Appeal, No. 187, Oct. T., 1905, by plaintiffs, from order of C. P. No. 1, Allegheny Co. March T., 1903, No. 61, refusing to take off nonsuit in case of Felix Michalofski and Joseph Michalofski, by Felix Michalofski his father and next friend, v. Pittsburg Screw & Bolt Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The court entered a compulsory nonsuit which it subsequently failed to take off.
    Macearlane, J., filed the following opinion:
    The plaintiff, a boy of thirteen years and seven months, was employed by the defendant at a thread-cutting machine, and his duty was to push nuts under four taps which were raised by a lever worked by the foot which raised the taps; the nut is then put in oil in a tin pan and pushed under the taps, which descend and cut the thread. The only instruction given him was by the foreman who put a nut under the tap and showed him how to do the work, and then directed another boy to show him, and he put four nuts in the machine. The foreman told the boy to be careful and not break any taps. On the next day he put a nut in the machine, tramped on the treadle and his foot slipped, the tap broke and the nut flew up and got caught in a cogwheel, breaking the cog. The boy did not know how to stop the machine, and had not been instructed, although there was a lever for that purpose. He took a stick and tried to poke the nut out, and by the pulling of the stick or in some other way his hand was caught in the cogs and injured.
    It was no part of his duty to remove the nut from the cog, and the case is not like that of Creachen v. Carpet Co., 209 Pa. 6, where it was part of the boy’s duty to remove the “ choke,” which was the accumulated wool caused by the operation of the machine. The plaintiff was not injured in performing any duty for which he was employed and was attempting to remove a difficulty which was not caused by the ordinary operation of the machine, but was meddling with something that was not his business. Had he been hurt in the operation of the machine he might be entitled to recover.
    The case of Doyle v. Pittsburg Waste Co., 204 Pa. 618, differs from that before us in that the clearing out of the waste after it had caught fire and been extinguished was a part of the duty of the operator. This frequently happened and the case was for the jury.
    We do not hold that this is a case of obvious danger, and were we satisfied that the removal of the nut was in any way a part of the plaintiff’s employment we would take off the non-suit. As it is the motion is refused.

      Error assigned was refusal to take off nonsuit.

      A. M. O'Brien, with him G. W. Brawner, Jr., for appellant,
    cited: Strawbridge v. Bradford, 128 Pa. 200 ; Royer v. Tinkler, 16 Pa. Superior Ct. 457 ; Welsh v. Butz, 202 Pa. 59.

      Balzell, Scott Gordon, for appellee, were not heard.
    January 2, 1906:
   Per Curiam,

Judgment affirmed on the opinion of the court below,


text:
    Bealafeld v. Slaughenhaupt, Appellant.

      Parent and child — Illegitimates—Will.
    Where a man marries a woman with an illegitimate child not his own, and thereafter has seven children by his wife, and subsequently dies leaving a will by which he gives his whole estate to his wife for her life, and upon her death to be divided share and share alike “among her children and mine,” the illegitimate child takes nothing under the will.
    The word “children” and like words are to be applied only to legitimate children, unless the illegitimate children are otherwise described so as to leave no doubt that they are to be included.
    Argued Nov. 2, 1905.
    Appeal, No. 199, Oct. T., 1905, by-defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 8, for plaintiffs on case stated in suit of Frederick W. Bealafeld, Mary D. Bealafeld, his wife, Elizabeth D. Blackmore and George Blackmore, her husband, v. Milton Slaughenhaupt.
    Before Mitciiell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    Shaker, J., filed the following opinion :
    In this case the parties have agreed upon a ease stated in the nature of a specific verdict, from which it appears that the plaintiffs have agreed to sell certain lands in Allegheny county to the defendant, and that the defendant has declined to pay the purchase money thereof, because, he says, the title of the plaintiffs is not good and marketable. The title of the plaintiffs depends upon the will of August Bealafeld, deceased. It appears from the case stated that in 1858 the testator married a woman who had at the time an illegitimate son about seven years old who was not a son of the testator; that this son lived with the testator and his wife as a part of the family until he was seventeen years old and until shortly before the making of the will in question; that the testator had bj^ this wife seven children who are the plaintiffs or whose interest is owned by the plaintiffs; that in 1884 August Bealafeld made his will, which was probated in that year, by which he gives all his property to his wife, the mother of the children named, for life or widowhood, and at her death the property to be sold by his executor and to be divided share and share alike “ among her children and mine.” He then provides that his wife or his executor, if she shall marry a second time, shall see that “ my children, Fred, William, August, John, Louis, Mina and Lizzie, shall, be clothed and educated out of the proceeds of my estate aforesaid.” The mother is now dead. The contention upon the part of the defendant is that the illegitimate son takes, under the will, one-eighth or at least some share of the estate, and that therefore the plaintiffs, who are, as we understand it, conveying the title of the seven legitimate children, have not a marketable title to the whole of the land. We understand the claim of the defendant, made at the argument, to be that the*words “her children and mine” designate two classes of persons, “her” children being eight in number and including the illegitimate son, and “ mine ” including only the sevén, and it is argued, not without some plausibility, that this view is strengthened by the use which the testator makes of the expression “ my children ” where he enumerates the seven by name. On the other hand, it is claimed that the rule which requires a will to be interpreted so as not to disinherit the heir in case of doubt should be applied, and that the word “ and ” must be interpreted as joining the designations “ her ” and “ mine ” into one term descriptive of the children to take, and notas joining the classes described. The question is substantially the same as that mooted in the celebrated fictitious case of the bequest of the black and white horses. But whatever the testator may in fact have had in his mind, we have no doubt that the illegitimate child of the mother can take nothing under the terms of this will, because of the well-established rule of law that the word “ children ” and like words are to be applied only to legitimate children unless the illegitimate children are otherwise described, so as to leave no doubt that they are to be included : Appel v. Byers, 98 Pa. 479.
    We.are of the opinion, therefore, that the title of the plaintiffs is good and marketable, and that judgment should be entered upon the case stated for the plaintiffs. We therefore order that judgment be entered for the plaintiffs and against the defendant for $1,900, with interest from June 14, 1905, and costs.

      Error assigned was in entering judgment for plaintiffs on case stated.

      William S. McDowell, for appellant.-
    The court erred in not finding that the stepson took an interest in the land : Bruckman’s App., 195 Pa. 863; Shirey v. Postlethwaite, 72 Pa. 39 ; Cheetham v. Muhlenberg, 133 Pa. 309; Klapp’s Est., 19 Pa. Superior Ct. 150; Young’s App., 83 Pa. 59; Leedom’s Est., 4 Del. Co. Rep. 418; Opdyke’s App., 49 Pa. 373; Seitzinger’s Est., 170 Pa. 500.

      Sol. Schoyer, Jr., and John P. Hunter, for appellee,
    were not heard, but in their printed brief said; Henry Fanker, being an illegitimate son, is not included within the term “ children: ” Appel v. Byers, 98 Pa. 479 ; Wettach v. Horn, 201 Pa. 201; Flora v. Anderson, 67 Fed. Repr. 182; Root’s Est., 187 Pa. 118; Janes’s Est., 147 Pa. 527; Grubb’s App., 58 Pa. 55; Steckel’s App., 64 Pa. 493.
    January 2, 1906 :
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Stewart,

text:
    S. Jarvis Adams Company, Appellant, v. Knapp.

      Equity — Foreign jurisdiction — Decree of court of other state not enforceable in Pennsylvania.

    A court of equity in Pennsylvania is without power to enforce any but its own decrees. It cannot adjudge the decree of any other court binding, or punish for the violation of any decree except its own.

      Equity — Contract—Injunction—Restraint of trade.

    Where a person resident in another state was enjoined by a federal court from engaging in the manufacture of certain specialties in violation of a contract, and subsequently such person removes to this state, and engages in the manufacture of such specialties, a court of equity in this state on evidence sufficient to overcome a responsive answer of denial, will enjoin such manufacturing; and it will do this under its general equity powers and under a general prayer for relief, and not with the intent to enforce the decree of another court.

      Argued Nov. 2, 1905.
    Appeal, No. 200, Oct. T., 1905, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1905, No. 169, on bill in equity in case of The S. Jarvis Adams Company v. Sanford A. Knapp.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Young-, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      Thomas Patterson, of Patterson, Sterrett Acheson, for appellant.

      W. K. Shiras, with him C. C. Dickey, for appellee.
    January 2,1906 :
   Opinion by

Mr. Justice Stewart,

The appellant, a corporation of this state, doing business in the city of Pittsburg, obtained a decree in the circuit court of the United States for the southern district of Ohio awarding an injunction against the appellee, then a resident of the state of Ohio, enjoining and restraining him from directly or indirectly engaging in the manufacture of certain specialties, described in the decree, in that particular part of the United States east of a line drawn north and south from the city of Denver, Colorado.

The present bill averred that the defendant in that proceeding, and appellee here, had removed from the state of Ohio and had become a resident of the city of Allegheny in this state, and was there engaged in the manufacture of the several articles he was enjoined against manufacturing by the decree aforesaid. It prayed: (1) that an injunction issue enjoining and restraining him from violating the terms of the decree and injunction of the said circuit court, in accordance with the terms therein ; (2) that the decree of the said circuit court be decreed to be binding upon the defendant as fully to the same extent as it could or would be within the jurisdiction of the said circuit court; (8) that the defendant he required to purge himself of his said contempt of the decree of said circuit court, and to make such amends for his violation thereof as may be just and proper; (4) for such other and further relief as the case may require and seem proper.

To this bill an answer was filed, admitting every averment set out, except that charging defendant with being at that time engaged in the manufacture of the articles mentioned and against the making. of which he was enjoined. Upon issue joined testimony was taken, and upon final hearing, the bill was dismissed, on the ground that but one witness having testified to the violation of the terms of the decree, this testimony did not overcome the responsive answer of the defendant.

This view of the case overlooks the facts and circumstances disclosed in the testimony, or fails to allow them their proper significance, in support and corroboration of the testimony offered on behalf of the plaintiff. Defendant is employed as a workman in the mills of the Monongahela Casting Company, whose business is the manufacture of car wheels and pipe balls. Three fourths of the entire product of the mill consists of pipe balls: and these are the specialty which the defendant agreed with the plaintiff he would not manufacture or engage directly or indirectly in producing. While the several specialties are manufactured on different machines, the work in connection with all of them is done under the same roof, and in the same room, where no one is admitted but those employed. The general superintendent of the mill receives an annual salary of $1,200; whereas the defendant, a subordinate, exercising no control or authority, unless it be that of a foreman, is paid a salary of $2,500. Considering that defendant’s contract with the plaintiff prohibits him from engaging directly or indirectly in the manufacture of pipe balls, the circumstances above referred to — for which he himself is responsible, since his employment in this particular establishment is a matter of his own pleasure — make his conduct more than equivocal; they establish a prima facie case against him, and the burden is upon him to overcome it. They are strongly corroborative of the plaintiff’s witness. Allowing them their due weight, in connection with this testimony, we are of opinion that a proper case is made out for equitable interference. The specific relief asked for in the bill could not be given, for the reason that the court is without power to enforce any but its own decrees; nor can it adjudge the decree of any other court binding, or punish for the violation of any except its own; but under the general prayer for relief, the court could have enjoined' the defendant against violating his agreement with the plaintiff, not to engage, directly or indirectly, in the manufacture of pipe balls, or other specialties which he had agreed not to manufacture; and this much relief we think the plaintiff was entitled to under the evidence submitted.

The decree in this case is reversed at the cost of defendant; the bill is reinstated with instructions that an injunction issue, enjoining and restraining defendant from engaging, directly or indirectly, as an individual or partner, or as a stockholder, director or officer of any corporation, limited partnership or other concern, or, as an employee of any corporation, limited partnership or other concern, or any person or persons whatsoever, in the manufacture or sale of pipe balls, bell dies, long dies, or angle boxes, being the specialties mentioned in the bill of complaint in this case, for or during the term of years ending November 12, 1910.


text:
    Todd, Appellant, v. Armstrong.

      Will — Devise—Life estate.

    Testator having devised real estate to his daughter directed as follows. “I direct that if my daughter should die unmarried, or having been married should die without issue born of her body, the estate herein bequeathed and devised to her shall vest in the manner following, to wit: If her mother be living a life estate to her, or if my daughter be married and her husband living a life estate to him, on failure of these, then" over. The daughter died without leaving living issue. The mother died before the daughter, and the daughter was survived by the husband. Held, that the husband took only a life estate in the real estate devised to his wife.
    Argued Nov. 2, 1905.
    Appeal, No. 201, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 295, for defendant on case stated in suit of James Walker Todd v. John H. Armstrong.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.

      Case stated to determine the marketable title to real estate.
    The facts are set forth in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant.

      J. M. Shields, for appellant.
    Where the gift over is not merely dependent upon death but upon dying unmarried and without issue, the event will be construed to mean not a death generally at some time or other, but a death in the testator’s lifetime, if the fund or property itself, and not merely the interest or income, is given absolutely to the person whose death is spoken of: Caldwell v. Skilton, 13 Pa. 152; Richards v. Bentz, 212 Pa. 93 ; Biddle’s Estate, 28 Pa. 59; Schoonmaker v. Stockton’s Admr., 37 Pa. 461; Shutt v. Rambo, 57 Pa. 149; Karker’s Appeal, 60 Pa. 141; Fahrney v. Ilolsinger, 65 Pa. 388; Mickley’s Appeal, 92 Pa. 514; Fitzwater’s Appeal, 94 Pa. 141; Stevenson v. Fox, 125 Pa. 568; King v. Frick, 135 Pa. 575; Morrison v. Truby, 145 Pa. 540; Coles v. Ayres, 156 Pa. 197; Mitchell v. Railway Co., 165 Pa. 645; Keating v. MeAdoo, 180 Pa. 5.

      Joseph Stadtfeld, for appellee, was not heard.
    January 2,1906:
   Opinion by

Mr. Justice Elkin,

The affirmance or reversal of the judgment entered in the court below depends upon the decision of the question whether the appellant took a fee simple estate under the will of his wife, or only a life estate under the will of William Jackson, deceased. The title to the property in question was originally vested in the said William Jackson, deceased, who by his will dated August 17, 1864, devised it to his daughter, Agnes Jackson, subject to certain conditions and contingencies therein set out. It is provided in the fourth paragraph of the will as follows:

“I direct that if my daughter should die unmarried, or having been married should die without issue born of her body, the estate herein bequeathed and devised to her shall vest in the manner following, to wit:
“If her mother be living a life estate to her, or if my daughter be married and her husband living a life estate to him, on failure of these, then the same shall vest in Robert Watson.”

The daughter named in the will, wife of the appellant here, died without leaving living issue. The mother died before the daughter, and the daughter was survived by her husband, the plaintiff in this case. Agnes Jackson, the daughter, acting on the theory that she took an estate in fee simple under the will of her father, devised the property in dispute to her husband, the appellant, and his heirs forever. The husband after the death of his wife, the said Agnes Jackson, entered into an agreement to sell and convey said property to the appellee, in fee simple, by general warranty deed, clear of all encumbrances. The purchaser refused to take the title on the ground that the appellant only enjoys a life estate in the property, and cannot convey a title in fee simple. The court below held that the will of William Jackson, deceased, imports a definite failure of issue in Agnes Jackson, and that the plaintiff only took a life estate in the real estate in question, and therefore entered judgment in favor of the defendant. In this there was no error. We arrive at the same result no matter whether we view the question from the standpoint of the plain meaning of the testator as appears in the will itself, or apply the technical rules of construction recognized and followed in many cases.

We have frequently said, and now repeat, that where the intent of the testator clearly appears in the will itself it is unnecessary to apply technical rules in order to determine the meaning intended. What did the testator mean by providing that if his daughter should die unmarried or having been married should die without issue born of her body? The answer is obvious. Under these conditions the estate devised should be enjoyed by her mother for life; then a life estate to the husband, and when these estates failed the title should vest absolutely in Robert Watson. The testator said what he intended and intended what he said. At the time of the death of the daughter, the mother was dead, there was no living issue born of the body of Agnes Jackson, her husband therefore took a life estate.

We arrive at the same result by an application of settled rules of construction. In a will it is true the primary meaning of the word “ issue ” is “ heirs of the body,” and it is construed as a word of limitation, and “ dying without issue,” standing alone means an indefinite failure of issue, but this general rule does not apply where the devise over of land to take effect is expressly or impliedly for a period of a life or lives in being and twenty-one years thereafter.

The rule has been stated by Mr. Justice Fell in Beckley v. Riegert, 212 Pa. 91, wherein it is said: “ In a will ‘ issue ’ prima facie means ‘ heirs of the body ’ and will be construed as a word of limitation, and dying without issue ’ standing alone means an indefinite failure of issue. But this construction will always yield to an apparent intent on the face of the will that the words were to have a more restricted meaning and to be applied to descendants of a particular class or at a particular time and not to all the descendants of every generation.”

The will of William Jackson, deceased, imports a definite and not an indefinite failure of issue, and therefore comes within this exception to the general rule. The estate of the daughter was subject to the condition that she had issue born of her body and living at the time of her death. No issue having been born and living at that time, the husband took a life estate and the fee passes to Robert Watson.

Judgment affirmed.


author: Mr. Justice Mestbezat,

text:
    Steck, Appellant, v. City of Allegheny.

      Negligence — Contributory negligence — Streets—Ice on footwalh — Knowledge of defect — Province of court and fury.

    In an action against a municipality to recover for personal injuries it appeared that plaintiff while going the usual and direct route to his work about noon stepped on ice, fell and was injured. The street was unpaved, with a cinder sidewalk on each side about five feet in width. At the point of the accident there was a depression or hole in the sidewalk, in which ice had accumulated, five or six feet in length, two inches deep and fifteen to eighteen inches wide. The ground was covered with an inch of snow which had fallen during the morning. Plaintiff and other persons had constantly used the walk and but one person had fallen. At the time of the accident plaintiff was walking carefully. Held, that the plaintiff was net as a matter of law guilty of contributory negligence but that the question was for the jury.
    Where in a suit for damages for injuries received by falling on an accumulation of ice on a sidewalk it appears that all streets were icy and slippery at the time of the accident and that the roadway was in a condition which might render it dangerous, the question as to whether there was a safer route which the plaintiff could have taken is for the jury.
    If one is injured in the use of a street known by him to be defective, and the evidence shows that when he entered upon it the danger was imminent and immediate, the court as a matter of law may declare him guilty of negligence, but when the testimony shows a defect of such character that the street can be used with safety by the exercise of reasonable care, notwithstanding its defective condition, whether the injured person performed the duty required of him under the circumstances is a question for the jury.
    A person is not guilty of contributory negligence in using a-road known by him to be defective unless the danger is so apparent that in the use of ordinary care he ought not to have undertaken its passage.
    One who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily -guilty of negligence because he does not take the safer route. If the alternative route has dangers of its own and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent, careful people from using it, the question of contributory negligence of a person injured in using it is for the jury.
    The law will not convict a pedestrian of negligence who, while using a sidewalk of a city street, is injured by a defect in the walk of which he was ignorant.
    Argued Nov. 3,1905.
    Appeal, No. 180, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, No. 144, for defendant non obstante veredicto in case of George F. Steck v. City of Allegheny.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Be-versed.
    Trespass for personal injuries suffered by plaintiff through a fall on an icy sidewalk. Before Macfarlane, J.
    Verdict for plaintiff for 13,000 subject to a point of law reserved. The court subsequently entered judgment for the defendant non obstante veredicto. Plaintiff appealed.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was ip entering judgment non obstante veredicto.

      Richard B. Scandrett, with him James B. Barnett, Thomas M. Benner and Body P. Marshall, for appellant,
    cited: McCue v. Knoxville Boro., 146 Pa. 580; Evans v. Brookville Boro., 5 Pa. Superior Ct. 298; Bruch v. Phila., 181 Pa. 588; Kellow v. Scranton, 195 Pa. 184; McClosky v. DuBois Boro., 4 Pa. Superior Ct. 181; Glading v. Phila., 202 Pa. 324; Evans v. Phila., 205 Pa. 198; Kauffman v. Harrisburg, 204 Pa. 26; Reed v. Schuylkill Haven Boro., 22 Pa. Superior Ct. 27; Butcher v. Phila., 202 Pa. 1; Allen v. DuBois Boro., 181 Pa. 184.

      L. K. Porter, for appellee,
    cited: Brendlinger v. New Hanover Twp., 148 Pa. 93 ; City of Erie v. Magill, 101 Pa. 616; Crescent Twp. v. Anderson, 114 Pa. 643; Hill v. Tionesta Twp., 146 Pa. 11; Boyle v. Mahanoy City, 187 Pa. 1.
    January 2, 1906:
   Opinion by

Mr. Justice Mestbezat,

This action was brought to recover damages for injuries sustained by the plaintiff in falling on the ice which had accumulated in a depression in the cinder sidewalk of Morris street in Allegheny city. The jury returned a verdict for the plaintiff which was taken “subject to a question of law reserved, whether there is any evidence in the case entitling the plaintiff to recover.” Subsequently the court entered judgment for the defendant non obstante veredicto on the ground that the plainti if was guilty of contributory negligence. The learned judge held that the evidence warranted the jury in finding the city negligent. He, however, was of the opinion that in attempting to pass over this part of the sidewalk the plaintiff was negligent as “ he knew the condition at this point and passed over it every day.”

Morris street is an unpaved street with cinder sidewalks, each of which is about five feet in width. The depression or hole in the sidewalk in which the ice had accumulated on which the plaintiff fell was five or six feet in length, two inches deep and fifteen to eighteen inches wide. The accident occurred as the plaintiff was going the usual and direct route to his work at the Fort Wayne railroad shops shortly after midday on February 10, 1902. The ground was covered with an inch of snow which had fallen during the morning.

Persons are not necessarily prohibited from using a street 01 a city because it is defective or may be partly obstructed. If this were so, business would be unnecessarily retarded and people would be greatly incommoded in the pursuit of their daily avocations. While, however, such conditions may not of themselves prevent the use of a street they nevertheless impose upon the person using it a higher degree of care than if the street were free from obstructions. In such cases the party traveling the street must use that degree of care demanded by the circumstances of the particular case. If he is injured in the use of the street, known by him to be defective, and the evidence shows that when he entered upon it the danger was imminent and immediate, the court, as matter of law, may declare him guilty of negligence. On the other hand, when the testimony shows a defect of such character that the street can be used with safety by the exercise of reasonable care notwithstanding its defective condition, it is not for the court, but for the jury, to determine whether the injured party performed the duty required of him under the circumstances. In 15 Am. & Eng. Ency. of Law (2d ed.), 468, it is said, citing numerous decisions of many states, including our own, in support of the rule, that “it is generally agreed that a traveler’s previous knowledge of a defect in the highway whereby he is injured is not of itself sufficient, as a matter of law, to prevent his recovery on the ground of contributory negligence.” In Stokes v. Ralpho Township, 187 Pa. 333, we held that one is not precluded from recovering for an injury received from a defect in a road, though knowing it was defective, unless the danger was so apparent that in the use of ordinary care he ought not to have undertaken the passage. “ A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination,” says Sterrett, Chief Justice, delivering the opinion in Mellor v. Bridgeport Borough, 191 Pa. 562, “ is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say, as matter of law, that the person using the more dangerous route is guilty of contributory negligence. If the alternative route has dangers of its own, as was the fact in this case, and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent and careful people from using it, the question of the contributory negligence of a person injured in using it is a question for the jury.” And in Brown v. White, 206 Pa. 106, this court said (p. 108 ) : “It is not necessarily negligence to attempt to pass over even a ‘noticeable accumulation’ of ice on the pavement. That may depend upon the size and shape of the accumulation, the obviousness and magnitude of the danger, the means at hand of avoiding it, and other circumstances. In the present case the plaintiff had passed over the obstruction the evening before, and whether it was prudent in her to try to do so again was for the jury.”

Applying these principles to the facts of the case in hand, it is clear that the learned judge was in error in holding that the plaintiff’s negligence was a question of law for the court and not of fact for the jury. The danger was neither great nor imminent. On the contrary, it is apparent that the walk might have been used with comparative safety. The plaintiff and other persons in that vicinity of the city had been constantly using the walk and with but a single exception no one had fallen on the ice. It is therefore quite evident that it was not necessarily dangerous for one to attempt to use the walk at that point. Whether all the circumstances made it the duty of a prudent person to refrain from using the walk on that occasion was for the jury. At that time, snow covered the street as well as the sidewalks. This may have increased the risk of using the walk, but - to what extent, and whether the plaintiff exercised greater and proper care by reason of the fact, was a question the jury must determine. As suggested by the court, the depression covered by the ice was only about two feet wide and there was space on the walk on either side of the ice for the plaintiff to pass. For aught that appears in the testimony, he may have been attempting to do that very thing when he fell. If he knew of the defect, it was his duty to avoid it if reasonable care would enable him to do so. He testifies that at the time he fell he was walking carefully along the pavement. He says he “was walking along naturally, wasn’t hurrying, had lots of time, was walking very carefully.” In fact, there is very little, if any, evidence in the case that tends to show that the plaintiff was not exercising the care required of him on the occasion, if we except' the fact that he knew of the ice when he attempted to use the walk. This, as we have seen, would not, as a matter of law, convict him of negligence.

We do not agree with the learned court that there was a safer way by which the plaintiff could have reached his destination and thereby have avoided the danger of the route which he took. The learned judge concedes that the walk on the opposite side of the street was in bad shape and icy. He also admits that the roadway was rough, but says that, according to the plaintiff’s witnesses, it was not dangerous. That was, however, a question for the jury, and under the testimony they could have found that the cartway of the road was very rough and was dangerous, as it had been cut in ditches by the wheels of the wagons driven over it. One witness testified that it was “very rough, frozen hard, almost impossible to walk on it.” This part of the street was covered with snow, and if the testimony of the witnesses was credible, the use of it by pedestrians might have been dangerous. In the language of the Mellor cáse quoted above, “the alternative route had dangers of its own.”

Thus far, in considering the case, we have regarded the plaintiff as having prior knowledge, not only of the depression in the sidewalk, but also of the ice which had accumulated in it. In his opinion, entering judgment for the defendant, if we understand his language, the learned judge disposed of the case on that view of the facts. But the testimony does not clearly show that the plaintiff knew that there was ice in the depression at the time he attemped to pass over that part of the pavement. It is true that the evidence on that point was neither as full nor as clear as it should and could have been, but if we properly construe the plaintiff’s own testimony, he testifies that he could not see, and hence did not know, of the ice because it was covered by the snow which had fallen earlier in the day. He testified on cross-examination: “Q. There was considerable ice on the street everywhere that day ? A. I could not notice any ice because there was about an inch of snow.” And as the verdict was for the plaintiff the jury necessarily .found, under the instructions given them, that the plaintiff had no knowledge of the ice in the depression. In his charge to the jury, the learned judge said: “If he (plaintiff ) knew of this condition, knew that there was ice here, then ho had no right to go upon it, because a man knowingly going into a place of danger cannot hold anybody else liable for his injury. ” It is therefore difficult to see how the court could justify his action in declaring the plaintiff guilty of negligence if ho had no prior knowledge of the ice on the sidewalk, which was the conceded cause of his injuries. The law will not convict a pedestrian of negligence who, while using a sidewalk of a city street, is injured by a defect in the walk of which he was ignorant.

We are of opinion that the learned judge should have directed judgment to be entered on. the verdict in favor of the plaintiff, and that he erred in entering judgment for the defendant.

The judgment is reversed with direction to the court below to enter judgment for plaintiff on the verdict.


text:
    Owens, Appellant, v. Goldie.

      Equity — Jurisdiction—When and how question of jurisdiction, may he raised.

    The question of jurisdiction in equity may be raised at any time before findings of fact and conclusions of law, but the better practice is to meet the bill with a demurrer.

      Actions — Assumpsit—Moyiey had and received — Inability of defendant for money that he ought to have received — Equity.
    In an action for money had and received a recovery may be had for money that a defendant ought to have received, and if money due the plaintiff remains in the hands of a third party because of a scheme on the part of the defendant to defraud or delay the plaintiff, he cannot be heard to assert as a matter of defense that he has not received it. In such a case equity has no jurisdiction.

      Equity — Money had and received — Adequate remedy at law.

    The allegations in a bill in equity were that defendant assigned to plaintiff one-half interest in certain inventions, and also a one-half interest in all improvements made in connection therewith; that at the time of the assignment there was an outstanding license to a third person for the use of the inventions in consideration of certain royalties and that there had been paid to defendant on account of these royalties a fixed and specified amount which he unjustly detained; that defendant with plaintiff’s consent and with the express understanding and agreement that both were to share equally in the transaction, sold the entire interest in the letters patent for a large sum, one-half of which had been paid to defendant, the other half being retained by the vendees in consequence of a notice from the defendant that he did not recognize the right of plaintiff to a share of the purchase money and requesting them to retain it as stakeholders. Held, that the plaintiff had an adequate remedy at law and that a decree dismissing the bill should be affirmed.
    Argued Nov. 3,1905.
    Appeal, No. 197, Oct. T., 1905, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1903, No. 373, dismissing bill in equity in case of Samuel T. Owens v. William Goldie.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for determination of rights of parties in royalties, and purchase money for patents. Before Shaeer, J.
    Objection to bill on ground that plaintiff had an adequate remedy at law.
    The material facts are set forth in the opinion of the Supreme Court.

      Error assigned was decree dismissing bill.

      I). E. Patterson and W. B. Badgers, with them J. M. Freeman, for appellants.
    Equitable jurisdiction does not depend on the want of a common-law remedy, for such remedy may be inadequate to meet all the requirements of a given case, or to effect complete justice between the parties : Bierbower’s App., 107 Pa. 14; Kirkpatrick v. McDonald, 11 Pa. 387; Warner v. McMullin, 131 Pa. 370; Gray v. Citizens’ Gas Co., 206 Pa. 303; Penna. R. R. Co. v. Bogert, 209 Pa. 589.
    No objection to the jurisdiction having been raised until after hearing, the appellee waived his right to have the bill dismissed on that ground: Penna. R. R. Co. v. Bogert, 209 Pa. 589.

      Clarence Burleigh, of Burleigh, Cray Challener, with him Kay, Totten Winter, for appellee.
    January 2, 1906 :
   Opinion by

Mr. Justice Stewart,

A demurrer to this bill would have been fatal. Nothing is set out in connection with plaintiff’s claim that distinguishes it, so far as concerns the remedy for its enforcement, from those cases which find their appropriate and convenient remedy in a common-law action. The allegations in the bill are (1) that defendant, to whom had been granted letters patent for certain inventions, assigned to the plaintiff a one-half interest therein, as well as a one-half interest in all improvements made in connection with said inventions, with an agreement for a quarterly settlement of all profits derived from the patents; (2) that at the time of the assignment there was an outstanding license in Dilworth Porter & Company, Limited, for the use of the inventions covered by the letters patent in consideration of certain royalties; and that there had been paid to defendant on account of plaintiff’s share in these royalties, the sum of $10,746.76, which he unjustly detains; (8) that on November 8, 1902, defendant, with plaintiff’s consent and approval, and with the express understanding and agreement that both were to share equally in the transaction, sold the entire interest in the letters patent to Dilworth, Porter & Company, Limited, for the consideration of $100,000, the one-half of which sum has been paid to the defendant, the other half being retained by Dilworth, Porter & Company, Limited, in consequence of a notice from the defendant, to the effect that he did not recognize the right of the plaintiff to the purchase money, and asking them to retain it as a stakeholder until the settlement of the matters in dispute was reached.

The case as thus presented is simply a demand for money had and received to plaintiff’s use, one item being on account of royalties received, and the other on the sale of the patent, both being ascertained and fixed in amount. The circumstance that plaintiff is without right of action against Dilworth, Porter & Company, Limited, does not affect the case. If they stand clear of all liability to him and are accountable only to the defendant, it is because of the course of dealing he chose to adopt —-for a purpose which finds its proper explanation in the evidence, but which calls for no remark here, except that it is one always obnoxious to equity — in allowing Dilworth, Porter & Company, to act in the belief that defendant was the sole and exclusive owner of the patent. Nor does the fact that the whole of the purchase money has not passed into the hands of the defendant. In an action for money had and received, a recovery may be had for money that a defendant ought to have received. We so held in Paul v. Grimm, 165 Pa. 189, where the very question was raised and met. If this purchase money, though due, yet remains in the hands of the purchaser because of a scheme on the part of the defendant to defraud or delay the plaintiff, he could not be heard to assert as matter of defense that he had not received it.

Instead of a demurrer, which we repeat must have proved fatal to the bill, for the reasons we have stated, defendant filed an answer, and upon issue joined testimony was taken. Before any findings the court was asked on behalf of defendant, to conclude that it had no jurisdiction to entertain the bill or grant the relief prayed for. The court so concluded and dismissed the bill accordingly.

What we have said above is sufficient expression of our view as to the proper remedy at the outset. It is argued here, however, that the action of the court in dismissing the bill was unwarranted in that it came too late ; that by answering and permitting the cáse to proceed until the testimony was all taken, defendant waived objection to the jurisdiction. The cases are not infrequent, where the court has refused to entertain objection to the equity jurisdiction, when made for the first time in connection with the appeal. Submission to the jurisdiction, until overtaken with defeat on the merits, has been always held to be a waiver by the party, when adequate remedy without violence to settled rule could be obtained through either form, law or equity. But that was not the case here ; objection was made before any finding, and it was upon the objection that the bill was dismissed. Unquestionably the better practice in such cases is to meet the bill with a demurrer in the first instance ; but this court has never gone so far as to hold that the question of jurisdiction could only be raised by demurrer. True, in Penna. R. R. Co. v. Bogert, 209 Pa. 589, our late Brother, Justice Dean, quotes from a decision of Judge Lowbie in the district court, to the effect that want of jurisdiction must be taken advantage of by demurrer, and not by objection; but that he intended to assert this as a general rule of practice is not to be supposed, when in the same connection, and disposing of the case immediately before the court, he says: “ Objection in this case is first made to the jurisdiction in the argument in this court, which objection to the jurisdiction can, generally, be made at any stage of the proceeding. Objection to the jurisdiction of equity on the ground that the proceedings should have been instituted on the law side of the court, will not be entertained, unless made wjthin a reasonable time after bill filed.” The case thus referred to does not advance at all beyond the settled rule as asserted in Edgett v. Douglass, 144 Pa. 95, and repeated in many cases, that where parties submit to the jurisdiction and take their chances of a decree in their favor, the objection on appeal will not, as a general rule, avail, unless the want of jurisdiction is so plain that the court would feel justified in dismissing the bill on its own motion.

Defendant took no chances in the court below for a favorable finding; it is the appellant who is the disappointed party. The right to a common-law action remains to him, and through it he can obtain all the redress he is entitled to.

Decree affirmed.