DISTRESS. Where, by the terms of a lease, the landlord is given the right to stop the removal of goods from the demised premises before the payment of the total rent reserved, the action of the landlord in levying a distress, to prevent such removal and for rent due, is in no sense an eviction, if the officer remain on the premises, and do not exclude the tenant therefrom. Murphy v. Marshell, 446.

Where a constable, who has made a distress for rent, and who has not the key of the building, puts on a new lock, his action cannot prejudice the rights of the landlord under the lease. Id.

DITCH. Where a railroad is separated from a piece of land by a line ditch, which serves the purpose of a line fence, both the land owner and the railroad company are under obligation to keep it clean; if, therefore, a ditch becomes filled by the permissive accumulation of refuse from the railroad, whereby the land owner's cows are enabled to cro-s over to the railroad and do so cross and are killed on the railroad track, the railroad com pany is not liable; its liability arises only when the filling of the ditch is willful, wanton, or reckless on its part. (Super. Ct.) Brooks v. Pennsylvania R. R. Co.,

212.

DIVIDEND. So far as affects a corporation, a div. idend is the share of a sum directed by the corporate authority to be divided among individual stockholders. It differs from profits, in that it is taken by such authority out of the joint property and transferred to the separate property of such stockholders. City of Allegheny v. Pittsburgh, Allegheny and Manchester Passenger Ry. Co., 366; City of Allegheny v. Federal Street and Pleasant Valley Passenger Ry. Co., 369.

It is not necessary to constitute a dividend that it shall be in cash. City of Allegheny v. Pittsburgh, Allegheny and Manchester Passenger Ry. Co, 366.

Where one company acquires all the stock of another, giving its own stock, in a certain proportion, to the stockholders of the latter company in exchange for their shares, such action is not equivalent to the declaration of a dividend by said company of the amount by which the aggregate value of the shares taken by its stockholders exceeds the par value of its stock and, hence, does not come within a provision of its charter requiring the company to pay a tax upon all dividends declared by it. Id.

See ASSIGNMENT FOR BENEFIT OF CREDITORS. (Super. Ct.) Assigned Estate of Wetzler, 514.

DRUGGIST. The Act of June 16, 1891, prohibiting any person, who has not obtained a certificate of competency from the State Examining Board, and been duly registered, from opening or carrying on, as a manager, any retail drug or chemical store, but making it lawful for the widow or legal representative of a deceased person, who was a manager and registered pharmacist, to carry on or continue the business of such deceased pharmacist, provided that the actual retailing, dispensing or compounding of medicines or poisons be done only by a duly registered assistant, is, on account of the exemption of the widow and legal representative from the prohibition, unconstitutional as a class regula

DRUGGIST-Continued.

tion of trade, such exemption de-troying its right to be considered as an exercise of the police power only. (Super. Ct.) Commonwealth v. Zacharias, 406.

EASEMENT. Ways, or other privileges, provided by an owner of land for the necessary or convenient use of different parts thereof, or structures thereon, will remain as servitudes, on the parts subjected to them, in the hands of subsequent purchasers with notice or where the easements are continuous and apparent, and such easements become appurtenant to the lands for the use of which they were provided, require no deeds or writings to support them and pass by a conveyance of the estates to which they are appurtenant. (Super. Ct.) Held v. McBride, 284.

Where it appears that an easement had become appurtenant to certain land, through the action of the common owner of the servient and dominant tenements, the right cannot be affected by a notice given by a subsequent owner of the servient tenements to discontinue the easement. Id.

The right of a pipe line company to remove its pipe laid on the land of another, on the abandonment of the easement, is not an incident of the easement. (Super. Ct.) Clements v. Philadelphia Co., 299. Surrender of by parol agreement. See STATUTE OF FRAUDS. (Super. Ct.) Hudson v. Watson, 160. EJECTMENT. In ejectment, by sheriff's vendee against the defendant in the original action, it is sufficient if the plaintiff show the defendant in possession when the writ was issued and served, as well as at the time of levy and sale, and also establish his own title as vendee at the sheriff's sale. (Super. Ct.) Marks v. Baker, 12.

In ejectment, by a remainder-man against one in possession of the property, the record of a former ejectment between the life tenant and the present defendant cannot be put in evidence. Lineberger v. Newkirk, 415.

An ejectment in which the issues are the genuineness of a signature to a deed and the sanity of the grantor, is not an equitable ejectment and is, therefore, not conclusive against a second ejectment, even between parties and privies. Id.

ELECTION. A conveyance by the lessor of the land demised in an oil lease, without reserving the rights of the lessee under the lease, amounts to an election on the part of the lessor to terminate the lease. He cannot thereafter demand rent. Mathews v. People's Natural Gas Co., 544.

EMINENT DOMAIN. Just compensation for land taken or injured in the course of public improvements, in the constitutional sense, is the amount that may be recovered upon the trial, according to the course of common law, of an appeal from the award of viewers, and it is not within the power of the legislature to enable any corporation to take property, without giving security for that amount. Harrisburg, Carlisle & Chambersburg Turnpike Co. v. Harrisburg & Mechanicsburg Electric Ry. Co., 86.

In proceedings in condemnation under the right of eminent domain, the actual value of the land taken, and not the personal estate of any kind, must be inquired into and determined. Neither the profits of business nor any kind of injury to any stock or merchandise, nor whether a better business could be done with a particular stock on the premises in question may be considered. Becker v. Philadelphia and Reading Terminal Co., 150.

The Constitution of 1873 made no change in the character of the property for which damages could be recov ered, it merely enlarged the right to recover from taking to injury or taking. Id.

EMINENT DOMAIN- Continued.

EQUITY-Continued.

An injury for which compensation may be recovered, and, at the same time, had her execute a mortgage of the
where land is taken or injured in the exercise of the right property, which was assigned to her in trust for his son
of eminent domain, must be such as, but for such right, H. Subsequently, the wife filed a bill in equity to have
would be actionable at common law, must be the natural the mortgage declared null and void. It appeared that
and probable result of the construction, enlargement or it was clearly understood by the parties that the wife was
operation of corporate works, and of such certain charac- to have the property for life only, and it then should go
ter that damages therefor can be ascertained and paid or to H.: held, that the execution of the mortgage was only
secured in advance. Clements v. Philadelphia Co., 299. a method to secure the intention of A., and that the wife,
A merely possible injury in the future cannot be the being a volunteer, could not object to any method which
basis of a claim for damages under the constitution or the the donor might prefer. Hays v. Hays, 463.
statutes made in pursuance of it. Id.

The measure of damages in the case of the exercise of
eminent domain is "just compensation," which must be
ascertained by a comparison of the value of the property,
as a whole, immediately before and its value immediately
after the construction, as affected by the easement. Id.
Injury which may be done to land by the removal of
pipe, laid on it by a pipe line company, is not included
within the damages fixed upon the original taking, and if
any injury be done by said removal, on the abandonment
of the easement, the pipe line company is liable for the
damages occasioned thereby, although such removal be
not negligently made. RICE, P. J., and WICKHAM, J., dis-
sent. Id.

A township is not a municipal or other corporation in-
vested with the power of taking private property for pub-
lic use, within the provisions of section 8, Article XVI., of
the Constitution, requiring such corporations to make just
compensation for property taken, injured or destroyed,
(Super. Ct.) Shoe v. Township of Nether Providence,
437.

ENCUMBRANCE. Where, in an agreement for
sale and purchase of real estate, there is a covenant to
convey clear of encumbrance, a street laid out on the
premises in a confirmed city plan, but not opened, is
such an encumbrance as will prevent a recovery of the
purchase money, even though the street was known by
the covenantee to exist on the plan. Evans v. Taylor,
206.

Where one has subscribed for stock upon the agree-
ment of another that he will secure him from loss, in an
action brought upon this contract, the equi ies of the
defendant may be protected by staying execution of
judgment until the plaintiff executes an assignment of
his right, title and interest in the stock for which he
subscribed. (Super. Ct.) McClymonds v. Stewart, 23.
A. and others, directors de facto of a corporation,
which was restrained by injunction from holding an elec-
tion, directed the issue of extra stock, and, without giv.
ing the stockholders an opportunity to subscribe for the
same, in proportion to their boldings, A. took so much
new sock as, with that already held by his friends, would
constitute a majority of the entire stock of the company;
100 shares of this new stock A. sold to R., who was
friendly to A.'s party, and who bought in good faith and
without notice of the circumstances of the issue of the
stock: held, A. might be restrained until further order
from voting, selling or disposing of any of the new stock
bought by him and also 100 shares of his old stock, in
order to require him to keep in his possession at least
100 shares in lieu of the stock sold to R. DEAN, J.,
dissented. Morris v. Stevens, 370.

Where it appears that a borough has passed an ordi-
nance for the widening of a stream within its bound-
aries, a riparian owner may be enjoined, at the suit of
the borough, from erecting in the stream, in front of his
land, a wall which will interfere with the accomplish-
ment of the object of the borough, without waiting until
the question of the right of the riparian owner to erect
the wall has been determined by a trial at law. Com-
monwealth v. Stevens, 375.

ENDORSER, An accommodation endorser, who,
after maturity, pays a note, may recover thereon against
the maker. The latter cannot set up that the said endor-
ser was a purchaser after maturity, as he comes into pos- The English rule which confines equitable interfer-
session of the note by virtue of his fulfillment of his con-ence in the case of the purchase of property, subject to a
tract of endorsement, in which his right to recover against
any prior party has its inception. (Super. Ct.) Van
Brunt v. Potter, 262.

ENGLISH STATUTES.
17 Car. II., c. 8, 125.

1 Jas. II., c. 17, 8 5, 125.
EQUITY. A bill in equity, having for its sole pur-
pose an injunction against crime or misdemeanor, does
not lie, but if the threatened criminal acts go further, and
operate to the destruction or diminution of the value of
property, equity may interfere. Klein v. Livingston
Club, 93.

Where the commission of an act, or its criminality,
depend upon the evidence of witnesses, the question will
be left to the proper criminal court; but where the de-
clared purpose to commit the act is admitted, and its
criminality is a pure question of law, equity may inter-
fere to restrain the act. Id.

Where one is indebted to his wife and she, being per-
suaded that her rights will not be affected, joins with her
husband in acknowledging a deed conveying all his
realty, equity will enjoin the grantee in such deed from
conveying his title and a trustee may be appointed to
conduct a sale of the premises, the fund to be applied
first to the payment of the indebtedness to the wife.
Houseman 7. Grossman, 276.

A. conveyed land to his wife, through a third person,

covenant, to restrictive orders, not followed. Cumberland
Valley R.R. Co., v. Gettysburg & Harr sburg Ry. Co. 72.
A railroad company may be enjoined from holding
possession of and operating the road of another to the
detriment of the rights of a third company, under a con-
tract with that other. Id.

A street railway company, organized under the Act of
May 14, 1889, P. L. 211, is authorized to construct and
operate its railroads on established streets and highways,
but it has no right to cross a steam railroad by means of
an overhanging bridge, at a point where no public high-
way exists, and an attempt to make such crossing should
be prevented by injunction. Northern Central Ry. Co.
v. Harrisburg and Mechanicsburg Ry. Co., 82.

An agreement by which A. leases to B. all the coal in
place under certain lands of A., at twenty-five cents per
ton of coal mined, and B. agrees to pay a minimum
rent, whether coal be mined or not, and it is agreed that,
if F. fail in any year to mine coal amounting to the min-
imum, the deficiency may be made up in any subsequent
year; that, if B.'s breaker be destroyed, the rent shall
be postponed, and that, if default be made in any quar-
terly payment, B.'s right shall be forfeited, does not con-
fine the right of A. merely to payment for coal actually
under his land, at twenty-five cents per ton, and, there-
fore, when it appears that there is an overpayment for
coal actually mined, which would, at the agreed rate,

A. insured his barn in a mutual fire insurance com-
pany, and, subsequently, made an assignment for the bene-
The findings of fact under the present equity rules are fit of creditors. The assignee called upon the agent of
like the findings of a master under the old practice; they the company, to have the policy transferred, and was in-
will not be set aside unless clearly wrong, an apparent formed there was no necessity of a transfer, until after a
preponderance of testimony against them is not sufficient deed was made by the assignee to a purchaser. Subse-
to condemn them, as the credibility of witnesses is an quently, the same agent made demand upon the assignee
important factor in the determination of a fact, and of
this the court below has a better opportunity to judge
than is offered to the appellate court. Commonwealth v.
Stevens, 375.

ESTOPPEL-Continued.

EVIDENCE-Continued.

There can be no estoppel where the person, against the testimony of disinterested witnesses is entitled to
whom it is set up, has not a full knowledge of his rights more weight than his. Platz v. McKean Township, 480.
in the subject matter. Hays v. Hays, 463.
One who was a defendant in execution, and husband
of the grantor of a party in an action of ejectment, is a
competent witness for said party after his wife's death,
where, having joined in his wife's deed, his tenancy by
the curtesy, in the property, has been conveyed away by
him. Jack v. Kintz, 354.

The wife of A. claimed that, in the settlement of cer-
tain divorce proceedings between herself and her hus-
band, it had been agreed that she should hold property
clear of all encumbrance and, in return, she had relin-
quished her right in other property of her husband. H.,
who held a mortgage upon certain property assigned to
the wife, was a party to this agreement, but the evidence
in support of the averment showed that the mortgage was
not expressly mentioned and there was no evidence that
H. understood that his rights were jeopardized: held,
that H could be deprived of his mortgage only by es-
toppel or his own consent, and that there was not suffi-
cient evidence to sustain an estoppel. Id.

While a tenant is not permitted to deny the title of his
lessor, under which he entered, and hold possession
against it, yet he may show that this title has since deter-
mined, or, where the lessor is an agent, that the agency
has been revoked and the rent been paid to the actual
owner. (Super. Ct.) Bandel v. Erickson, 490.

An action of ejectment instituted by a mortgagor in a
purchase money mortgage, against one, claiming title
paramount to the mortgagee's, who has taken possession
of the mortgaged premises, does not estop the mortgagor
from setting up the ouster as a defence in proceedings on
the mortgage. Chaffey v. Boggs, 549.

EVICTION. An eviction is the dispossession of the
tenant by some act of the landlord, or failure of his title,
or an interference with the defendant's possession of the
demised premises, in whole or in part, by the wrongful
action of the landlord. Oakford v. Nixon, 49.

Covenants for quiet possession relate only to the acts
of the lessor and his agent, or the holder of a better title.
Where there has been a lease of the surface of a wall,
visible from a certain point, with the intent that it shall
be used for advertising purposes, and the owner of the
adjoining premises makes an erection thereon, in such a
way as to shut off the view of said wall, and render it
useless for said purposes, but without interfering with the
physical position of the wall by the lessee, the latter can-
not claim that he has been evicted, and thus escape pay-
ment of the rent reserved in the lease. Id.

Where, by the terms of a lease, the landlord is given
the right to stop the removal of goods from the demised
premises, before the payment of the total rent reserved,
the action of the landlord in levying a distress, to prevent
such removal and for rent due, is in no sense an eviction,
if the officer remain on the premises and do not exclude
the tenant therefrom. Murphy v. Marshell, 446.

The fact that the lessor in an oil lease erects, subse
quently to the lease, a building upon the lots so demised,
is not such an eviction as to terminate his right and de-
mand rent when the lease is to enable the lessee to drill
wells for oil or gas, and it does not appear that the action
of the lessor in any way interferes with the exercise of
this right by the lessee. Mathews v. People's Natural
Gas Co., 544.

EVIDENCE. A presumption must be based on a
fact, and mere presumption that an act had not been per-
formed, is not a sufficient basis for another presumption
that when performed it was in consequence of a request
so to do. (Super. Ct.) Waters v. Wolf, 38.

The credibility of a witness is always for the jury,
even if he be not contradicted. Kircher v. Sprenger,
572.

The fact that a witness has an interest in a case may,
and should, be considered by the jury in determining
what weight shall be given to his testmony, but there is
no legal warrant for an instruction from the conrt, that

Administrators, plaintiffs in a suit to recover from a
firm, one of whose partners is dead, have an interest adverse
to the right of the estate represented by the defendants,
and are incompetent to testify. Powell v. Derickson,
378.

The members of a testator's family, and the inmates of
his home are, generally, the only witnesses who have
every opportunity to observe the relations between the
maker of a will and him whose unlawful influence is
alleged to have procured it. Their interest may affect
their credibility, but it is peculiarly the province of the
jury to pass on the same.
Miller's Estate, 397.

A witness who has known a piece of land for some
years, and who has knowledge of its condition, quality
and utility and of sales of similar properties in the neigh-
borhood, may be examined as an expert as to the value
of said land. (Super. Ct.) Orr v. Carnegie Natural
Gas Co., 213.

A witness who has no knowledge of a piece of land
cannot testify hypothetically concerning its value. Id.
Where a witness has testified that he had given notice
to a director of a company, using a cable to propel its
cars, of the defective condition of said cable, it is im-
proper to ask him on cross-examination whether the re-
pairing of the cable had been well done, since he had
not made the repairs and it did not appear that he had
examined the cable. Musser v. Lancaster Street Rail-
way Co., 37.

The opinion of witnesses is in some cases admissible
as evidence when it does not come under the head of ex-
pert testimony; in a trial for abortion, a witness who has
nursed over one hundred cases of childbirth may be asked
what in her opinion caused the discoloration of the linen
of the patient. (Super. Ct.) Comm'th v. Gibbons, 565.

The evidence of one, not a party to the action, as to
probable cause for an arrest, to recover for which an ac-
tion is brought, is not admissible in the defence of such
action. Burk v. Howley, 473.

A witness must show that he understands what testa-
mentary capacity means before any weight is to be at-
tached to his testimony on the question of the validity of
a will. Shreiner v. Shreiner, 171.

Where a witness cannot by mere descriptive language
convey to a jury precise facts, or their bearing upon the
issue, he may supplement his description by his opinion,
but where the circumstances can be accurately described
to the jury, and are such that their bearing on the issue
can be estimated by ordinary men, the opinions of wit-
nesses, expert or otherwise, are not admissible. Auberle
v. McKeesport, 423.

When the character of a witness is attacked, his char-
acter at the time he testifies is under investigation, and
this is to be established by evidence of his general repu-
tation at that time, and not his reputation at a time prior
to the commencement of the suit, which may be a pe-
riod remote from that at which he testifies.
Smith v.
Hine, 402.

Under the Act of June 25, 1895, P. L. 279, allowing
testimony to be taken out of the State by way of depo-
sition, instead of upon commission, the court will allow a
rule to take such testimony, unless cause be shown to the
contrary. (C. P.) Reed v. Fidelity and Casualty Co.,
438.

Where an agreement in writing is expressed in short
and incomplete terms, parol evidence is admissible to ex-ant in the original action, evidence of defendant's title is
plain that which is, per se, unintelligible, such explana-
tion not being inconsistent with the written terms. (Su-
per. Ct.) Leggoe & Co. v. Mayer & Co., 247.

superfluous, but, if admitted, is not reversible error.
(Super. Ct.) Marks v. Baker, 12.

Where it appears that a proposition was made by two
partners, to which their five co-partners objected, that it
was then informally discussed and a decision arrived at,
which decision, by the aid of counsel, was formally em-
bodied in a written agreement, the case is clearly one in
which to apply the rule that all prior negotiations are
merged in the writing which is the sole evidence of the
intention of the parties. Estate of Haines & Co., 17.

Where a life insurance policy contains a condition
avoiding it if the insured, before the date of the policy,
has been treated for any serious disease or complaint, or
has had any pulmonary disease, etc., it is not error to ex-
clude testimony to the effect that the insured had been
it-treated for alcoholism, if the offer be not to prove that
the treatment was prior to the issue of the policy.
(Super. Ct.) Carson v. Metropolitan Life Ins. Co., 21.