in equity, plaintiffs are estopped from now asserting a right concerning which they have so long remained silent. The case comes clearly within the ruling of this court in Carr v. Wallace, 7 Watts, 394. There, an owner of a right of common stood silently by while the trustees of a theological seminary, under a belief as to their right, erected a large and costly building on land, which destroyed plaintiffs' right of common; this court spoke thus: "What right has the plaintiff under these circumstances to complain of the disturbance of his right of common? There is no principle better settled, nor one founded on more solid considerations of equity and public utility, than that which declares that if one knowingly, though he do it passively, by looking on, suffer another to purchase and spend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and the conscience of plaintiff is bound by the equitable estoppel." We hold that it was plaintiffs' duty here to deny defendants' right to the land by a prompt legal assertion of their own right; then, on the | event, defendants could have taken their $15,000 and have expended it elsewhere. Here, there seems to have been recrimination on both sides; plaintiffs called defendants revolutionists; defendants called plaintiffs usurpers; but the real point in dispute was the title to this small piece of land, which should have been settled by trespass or ejectment. We decide that, while under the undisputed facts, plaintiffs' title to all the remaining land is clear, they are estopped in equity from denying defendants' title to this three-quarters of an acre. As to the decision of the classis in defendants' favor as to the whole tract and church property, we can only say the law of the church in this particular is not the law of the land. The judgment is affirmed. Superior Court, Penn'a. under a commitment issued after a hearing in the Common Pleas on a warrant of arrest under the Act of July 12, 1842, based upon debts exceeding in amount $50,000, claiming that the proceedings were vold because the statutory proceedings under which they were issued were superseded by the bankrupt law of 1898. Held, that as the proceedings attacked were in the Common Pleas Courts, and by reason of the amount in controversy were not reviewable in the Superior Court, the latter court had no authority to discharge the relator under habeas corpus. Whether or not the provisions of the Act of July 12, 1842, relating to warrants of arrest, have been superseded by the bankrupt law of 1898, not decided. Sur rule to show cause why writ of habeas corpus should not issue to discharge J. McD. Scott from the custody of the warden of the Allegheny county jail. The relator made an assignment for the benefit of creditors and that subsequently petitions were filed by certain creditors to have him adjudged a bankrupt, which petitions were finally consolidated at No. 94 in bankrupcy in the District Court of the United States for the Western District of Pennsylvania. In October, 1898, a number of creditors of the relator made application to Hon. S. A. MCCLUNG for warrants of arrest under the provisions of the Act of July 12, 1842, whereupon the petitioner gave bond to the creditors conditioned to apply for the benefit of the insolvent laws of the State of Pennsylvania; that the discharge of the petitioner was opposed by creditors and evidence produced tending to show that petitioner was guilty of fraudulent insolvency. Subsequently petitioner was committed by the Court of Common Pleas No. 3, of Allegheny county, for trial on the charge of fraudulent insolvency before the Court of Quarter Sessions of Allegheny county and petitioner placed in custody of the jailor of said county of Allegheny under said charge and has been ever since the 21st day of January, 1899. The petition further averred that at No. 41 May Term, 1899, on January 25, 1889, the Circuit Court of the United States for the Western District of Pennsylvania, petitioner, filed his petition for a writ of habeas corpus directed to John McAleese, warden and keeper of the jail aforesaid, Whereupon upon hearing of peti COMMONWEALTH ex rel. SCOTT v. Mc- tion and answer the said Circuit Court of the ALEESE. The provisions of the Act of June 24, 1895, P. L. 212, creating the Superior Court, which declare that "the said court shall have no original jurisdiction, except that it may issue writs of habeas corpus," give the right to issue a habeas corpus to annul an order, decree or judgment of a lower court only in cases where revisory jurisdiction is given the Superior Court over such lower court. A. applied to the Superior Court for a writ of habeas corpus, complaining that he was illegally held in custody United States discharged the writ of habeas corpus and remanded the petitioner to the custody of the warden. Whereupon appeal was sued out to the United States Circuit Court of Appeals and, after hearing and argument, the appeal was dismissed. For petitioner, J. S. & E. G. Ferguson, John Marron, J. A. Langfitt and W. B. Rodgers. For intervening creditors, W. A. Blakeley and Way, Walker & Morris. Opinion by RICE, P. J. 1899. Filed May 18, thereof." Manifestly these were not proceedings in the Quarter Sessions, nor before any This is an application by J. McD. Scott for a judge acting as a judge thereof. The proceedwrit of habeas corpus. He complains that he ings were in the Court of Common Pleas and is held in custody by the warden or keeper of before a judge of the Common Pleas exercising the Allegheny county jail under two commit-powers conferred upon him as such. But not ments. One was issued by the Hon. S. A. Mc- | every proceeding in the Common Pleas is reCLUNG, a judge of Court of Common Pleas No. 3, of Allegheny county, after a hearing upon warrants of arrest issued by him under the Act of July, 1842. Prior to this time warrants of arrest had been obtained by other creditors, and the relator had given bond to them conditioned to apply for the benefit of the insolvent laws of the State. He did so apply, and, after a hearing, Court of Common Pleas No. 3 committed him for trial on the charge of fraudulent insolvency before the Court of Quarter Sessions of Allegheny county. Up to the present time no action has been taken by the latter court in the matter. Both of these commitments were issued on the same day. viewable by the Superior Court. In general, the proceeding must involve the possession or ownership of real or personal property, or a right, the value of which can be measured in money, and the value of the property or the amount of money actually in controversy must not exceed $1,000. To say that the present proceedings do not involve such a controversy, but simply the personal liberty of the relator is to state his case out of court. Nor is this contention sustained by the authorities. Neither the commitment issued by Judge MCCLUNG nor that issued by the court is of the nature of a summary conviction. They are but steps in proceedings to compel the payment of debts fraudulently contracted or payment of which is 520; Berger v. Smull, 39 Id. 302; Grieb v. Kuttner, 135 Id. 281. The relator's contention is that the commitments are illegal and void because the statutory | fraudulently evaded: Gosline v. Place, 32 Pa. provisions under which they were issued have been superseded by the bankrupt law of 1898. The question is one of the highest importance, but before considering it we are called upon to meet and dispose of the objection raised by the creditors, who were permitted to intervene to oppose the present application, that, as the commitments were issued in civil proceedings in which the amount actually in controversy exceeded $1,000, the Superior Court has not jurisdiction. As the above cited cases, as well as Hart v. Cooper, 129 Pa. 297, Morch v. Raubitschek, 159 Id. 559, and Shoe Co. v. Saupp, 7 Pa. Super. Ct. 480, show an appropriate, if not the only appropriate, remedy for the review of the action complained of would be by certiorari, or, as now called, appeal. In the cases cited the certiorari was treated as the principal writ and the writ of habeas corpus, if one issued, as ancillary The jurisdiction of the Superior Court within to it. But whether one or the other be treated the limits prescribed by the Act of June 24, as the principal writ the object is the same, 1895, P. L. 212, is exclusive, not concurrent with namely to overturn and annul the orders of that of the Supreme Court. That is to say, it the Court of Common Pleas and of the judge is not left to the option of the person aggrieved thereof in proceedings in which the amount in to determine whether the order, decree or judg- controversy far exceeds the statutory limit of ment of the lower court of which he complains our jurisdiction. If the relator had appealed shall he reviewed by the Supreme Court or the we suppose no one would have any doubt as to Superior Court. Subject to a conditional right the appellate court that would have jurisdicof appeal the jurisdiction of the Supreme Court tion. The question arises here because of this in certain classes of cases has been transferred provision of the Supreme Court Act: “The said to the Superior Court, and all jurisdiction not court shall have no original jurisdiction, except so transferred remains unimpaired. If it be that it may issue writs of habeas corpus." But shown, that one court has jurisdiction of the this does not mean that the court may issue proceeding to be reviewed the other has not, a writ of habeas corpus whenever a petition and this is determinable, not by the form of the is presented in which the relator complains application made to the appellate court, but by that he is unlawfully restrained of his liberty. the subject-matter of the proceeding to be re- Surely, we would have no power to issue the viewed or by the court in which it was had. writ where the relator was in custody under Subject to certain exceptions, not necessary to any order, judgment or decree of the Supreme be noticed here, the Superior Court has revisory Court. We refer to this simply as an illustrajurisdiction of "all proceedings of any kind in tion. Numberless others might be given where the Court of Quarter Sessions, or any judge | the principles enunciated in Com'th v. Lecky, 1 The rule is discharged. Court of Common Pleas No. 1, ALLEGHENY COUNTY. JACK, Executor, etc., v. FORSYTHE. Where the lessee of a coal mine bound himself to pay a royalty of so much per bushel for coal mined, as taken from the pay-rolls of lessee: Held, that the lessee must pay royalty for coal known as "entry coal" mined in opening passage ways or entries; the mining of which cost double the value of the coal procured from such passage ways; and for which mining, the The fact that the lessor, who carried on the same mine miners were paid by the yard, and not by the bushel. W. 66, Willamson's Case, 26 Pa. 1, and William- | thority to discharge the relator, even if his couson v. Lewis, 39 Id. 9, would prevent this court | tentions as to the effect of the bankrupt law from discharging on habeas corpus. The pro- were well founded. vision under consideration was inserted in the Act of 1895 in aid of its revisory jurisdiction and is plainly to be construed with reference thereto. In other words, our jurisdiction upon habeas corpus to annul an order, decree or judgment of the lower court is limited by our revisory jurisdiction over them. If an appeal is an appropriate, although perhaps not the exclusive remedy, and the Supreme Court would have jurisdiction of the appeal, and we would not, it would seem plain that we could not acquire jurisdiction by issuing a writ of habeas corpus instead of a writ of certiorari. If there were any doubt as to this it is removed by a consideration of the 14th section of the Superior Court Act. It read as follows: "This act does not apply in any respect to any proceeding unless it is herein before made reviewable by the said Superior Court, but all such proceedings shall continue to be reviewable directly by the Supreme Court in the same manner and to the same extent as is now or may hereafter be provided by law." In reading this section special emphasis should be laid on the words "proceeding ... herein before made reviewable." Nothing, it will be observed, is left to implication in defining the jurisdiction of the court. Is the proceeding made reviewable by the act, is the question. If it is, the appropriate writ, whether certiorari or habeas corpus may be issued. If it is not, we cannot make it reviewable in our court by a choice of writs. There was nothing said or decided in Com'th v. Gibbons, 9 Pa. Super. Ct. 527, in conflict with the foregoing conclusions. That was a proceeding for contempt in the Court of Quarter Sessions, consisting of a refusal of a witness to testify in a case involving the right to a public office. As is well shown in the opinion of our Brother SMITH, the contempt proceeding, in character and effect, was wholly independent of the proceeding in which it had its origin, and being in the Quarter Sessions we unquestionably had jurisdiction over it. So in Lizzie Nuber's Case, 6 Pa. Super. Ct. 420, we issued a writ of habeas corpus and a writ of certiorari to bring up the record, and upon hearing discharged her from custody upon the ground that the sentence and commitment of the Quarter Sessions under which she was held were illegal and void. Here, however, the proceedings attacked were in the Common Pleas and by reason of the amount in controversy were not made reviewable in the Superior Court. We are constrained, therefore, to hold that we would have no au prior to said lease, paid the miners for "entry coal" mined, by the yard, and not by the bushel, does not affect the contract in the lease, which is clear and not ambiguous. The number of bushels can be obtained from the pay-rolls, which show the number of yards of "entry coal" mined. No. 684 June T., 1898. In Equity. COLLIER, J. Filed July 11, 1899. This is a bill praying for an injunction for the appointment of a receiver for an account, etc. On October 4, 1898, the following consentable decree was entered of record, viz.: "And now, October 4, 1898, this cause having come on for hearing on bill, answer and replication, both parties by their respective counsel being in court and consenting to this decree, it is ordered, adjudged and decreed that the bill in this case be and it is hereby dismissed upon the merits, as to the sixth, seventh, ninth, tenth, eleventh and twelfth paragraphs, as to the allegation in the second paragraph which reads, 'that under the terms of said agreement said defendant, P. J. Forsythe, was to give his full time and attention to the business of P. J. Forsythe & Co.;' and as to the first, second and third and fifth prayers, and also the fourth prayer, except so far as it prays for a decree of royalties on entry coal. The defendant admitted his individual liability, however, as set forth in the ninth paragraph of the answer in the sum of four thousand four hundred and fifty-nine and 22-100 dollars ($4,459.22) to the firm of P. J. Forsythe & Co. It being also admitted that the firm of P. J. Forsythe & Co. is still indebted to the estate of Jordan S. Neel for the balance of five thousand dollars ($5,000), and a portion of its interest, as set forth in the sixth paragraph of the answer. This cause is held for further proceedings as to the one question only, of the liability of the firm of P. J. Forsythe & Co. to pay to the plaintiff, as executor under the will of J. S. Neel, deceased, royalty on entry coal. "By the Court." "October 3, 1898, we consent to above decree. "J. J. MILLER, "Solicitor for Plaintiff. "M. W. ACHESON, Jr., "GEO. C. WILSON, "Solicitors for Defendant." So, the sole question for our determination is, whether the defendant is liable for royalty on entry coal? FINDINGS OF FACT. 1st. Prior to January 1, 1892, Jordan S. Neel was the owner and operator of extensive coal works in Washington county, Pa. 2nd. On January 1, 1892, Jordan S. Neel entered into an agreement of copartnership with P. J. Forsythe, under the name of P. J. Forsythe & Co., for the purpose of carrying on the business of operating and mining coal and cutting and sawing lumber. 3rd. Jordan S. Neel contributed as his part of the capital of the firm a lease for fifteen years of twenty-four distinctly described tracts of coal lands, together with the store building, houses, stables, saw mill and other buildings, pit cars, mules, iron lines, pumping boat and all other machinery, fixtures and property, situate thereon and necessary. He also agreed to pay all the taxes, to pay one-half the expense of constructing a new haulage system, and also all the goods and merchandise in the store on said premises, pit posts, rails, lumber and all other personal property situate thereon. 4th. P. J. Forsythe contributed $1,644.19, one-half the estimated value of the personal property put in by Neel. Forsythe was to receive $2,500 per year for his services, and was to control and manage the business, with exclusive power to make contracts, sign notes, checks and papers in relation to said business. The partnership was to continue for fifteen years, unless the coal was sooner exhausted. 5th. In the articles of copartnership this language is used: "That Jordan S. Neel, as his portion of the capital of said business, agrees to, and by a paper of even date herewith, duly signed and acknowledged, does upon the terms and conditions hereinafter expressed, hereby lease to said firm all the coal property now owned by him, situate in East Pike Run and adjoining townships, Washington county, State of Pennsylvania, known as the "Greenfield Coal Works," together with the store buildings, horses, stables, etc., etc. In consideration whereof said firm of P. J. Forsythe & Co. agrees to pay to the said Jordan S. Neel as rental or royalty upon said coal, the sum of forty (40) cents for each and every 100 bushels of coal mined; the amount of coal so mined to be ascertained and determined from the pay-roll of said firm." In Exhibit B, attached to the bill, and in the lease referred to as of January 1, 1892, this language is used: "The said parties of the second part hereby agree to pay to the said Jordan S. Neel the sum of forty (40) cents for each and every 100 bushels of coal mined and taken from lands, as made up and taken from the pay-roll at said works." This lease of the twenty-four pieces of coal lands is dated January 1, 1892, the same date of the articles of copartnership, and is the lease referred to in said articles. This lease was executed on January 25, 1892. 6th. "Entry coal" is coal taken out in the process of constructing in the mine what are known as "entries," the purpose of which is to reach the body of coal and provide passage ways to bring the coal out, and for the purpose of air. The construction of entries costs about double the value of the coal which is got out of them. 7th. At the time of entering into the copartnership, Jordan S. Neel was in ill health, and from February 2d until March 8, 1892, was in the Homopathic Hospital in Pittsburgh, Pennsylvania, and from there went to the State of California, where he stayed several months. He returned to Coa! Centre in the summer of 1892, and from that time on was at Coal Centre off and on as he had always been before until the latter part of October or November, 1892, when he returned to California, where he died on March 5, 1893. 8th. In the first pay-roll of the new firm, on January 16, 1892, royalty on entry coal for 2,064 bushels, was reported and paid on the pay-roll of February 6, 1892, the entry coal was calculated in bushels, but the royalty thereon was not paid. On the pay-roll of February 19, 1892, 6,945 bushels of entry coal were reported and the royalty thereon paid. On the pay-roll of March 5, 1892, 6,794 bushels of entry coal were set forth, but royalty thereon was not paid. On the pay-roll of March 19, 1892, the entry coal was calculated at 9,455 bushels, but no royalty was paid thereon. Since which date the number of bushels of entry coal mined has not been calculated and carried on the pay-rolls, they only showing the number of yards of entry cuted on January 2, 1892. Defendant then went coal mined. to Cincinnati and returned to Coal Centre in the latter part of said month of January, after the 20th thereof. The defendant refuses to pay royalty on "entry coal.” At the request of defendant we find the following additional facts. 1st. Jordan S. Neel, the plaintiff's decedent, for a continuous period of many years, down until his death, on March 5, 1893, owned a certain coal mine at Coal Centre, Washington county, Pennsylvania, then and still known as the Greenfield Coal Works. 2nd. Said Neel, for a continuous period of many years, down until the end of the year 1891, individually mined and operated said mine. 3rd. For a continuous period of many years, down until the end of the year 1891, during which period said Neel operated said mine, his unvarying practice at said mine was to pay by the bushel, miners who mined coal from the rooms, and to pay by the yard miners who drove entries. 4th. Defendant, as mining partner, took charge of the business of the firm on February 1, 1892. Thereafter, until March 5, 1893, said mine was operated by said firm, as per articles of agreement, and continuously since March 5, 1893, down to the present, defendant as surviving and continuing partner under said articles has carried on said business and operated said mine. 5th. The method of operating said mine and of paying the miners, during the said partnership, both before and since March 5, 1893, has been the same as that pursued by said Neel when he operated said mine. 6th. During said partnership pay-rolls have been made up by the bookkeeper every few weeks, and on each pay-roll the miners mining room coal in said mine have uniformly been credited thereon, simply with a given number of bushels, and the miners driving entries in said mine always simply with a given number of yards. 7th. Throughout said partnership a special royalty account has been kept, the items of which consist of bushels of coal carried consecutively from the firm pay-rolls. 8th. A Mr. Jackman, who was Neel's bookkeeper at said mine when said firm took charge, continued on as said firm's bookkeeper for a year or more, and during said year or more kept said pay-rolls and account. Said Jackman, when this case was being tried, was living about one mile from Coal Centre in the employ of two of said Neel's heirs. 9th. Said articles of partnership were exe | We also find that the number of bushels of entry coal mined can easily be ascertained from the number of yards on the pay-rolls which should show them paid for to the miners, and that each yard of entry coal mined contained about 80 bushels of coal. FINDINGS OF LAW. The agreement of partnership and the lease, both dated on the same day, differ little in the words relating to the payment of roalty to the landlord, Neel. ་་ The former states that P. J. Forsythe & Co. agrees to pay to the said Jordan Neel as rental or royalty upon said coal, the sum of forty cents for each and every 100 bushels of coal so mined, to be ascertained from the pay-roll of said firm.” The lease provides that, "Said parties of the second part hereby agree to pay to the said Jordan S. Neel the sum of forty cents for each and every 100 bushels of coal mined and taken from the pay-rolls at said works." The lease and copartnership agreement both contemplated the exhaustion of the coal. We think the words of the contract are plain and clear and mean just what they say, viz., that the defendant is to pay royalty on each and every 100 bushels of coal "mined and taken from said lands," the amount "to be ascertained from the pay-rolls of said firm," and that this includes entry coal mined and taken from said lands. There seems to us no ambiguity about the contract. The number of bushels of coal mined and taken from the lands can be easily ascertained from the pay-rolls of said firm, which should show the number of yards mined, notwithstanding the defendant from March 19, 1892, and since the death of Neel, has discontinued noting on the pay-rolls the number of bushels of entry coal mined. Nor do we find anything in the evidence to justify us in holding that the contract does not include entry coal. The evidence is too vague, uncertain and contradictory to justify us in holding that the words "except entry coal" should be read into the contract, or show that Neel intended to exclude royalty on entry coal. We are of opinion that the defendant must account for all the entry coal mined and taken from the lands of Neel, and for which he must pay forty cents for every 100 bushels, except the amounts on the pay-rolls of January 16, 1892, |