It was also proved by several of the defendant's witnesses that notice was given to these very men only a few minutes before the explosion that they must not smoke. Some of the plaintiff's witnesses who were at remote points said they did not hear the notice, which is merely a negative and goes for nothing, and McGinty said no notice was not depend upon the giving or omitting to give notice. The injury was directly caused by a clear and undoubted act of negligence of a fellowworkman, and even if the plaintiff were entitled to recover upon other grounds, this alone would prevent a recovery. Judgment reversed. was no evidence to prove negligence on the part | nesses testified to the same fact, so that it was an of the company or its agents, it was error to tell absolutely undisputed fact, proved on both sides, the jury that it was for them to decide whether and it was simply fatal to the plaintiff's case. there was negligence or not. If there was no evidence to prove negligence it was not for the jury but for the Court to decide the case by a specific instruction to return a verdict for the defendant. No principle of the law is more familiar or more deeply rooted in our system of jurisprudence than this. It would be a mere affectation to cite the authorities. Having most carefully given, but it is quite immaterial, as the case does read and studied every particle of the testimony we are bound to say that the Court was entirely correct in saying that there was no evidence to prove negligence of the defendant. On the contrary it was affirmatively and positively proved that the appliances used in making the test were of the best and most approved kind, and such as were in common and constant use for that purpose. John Bell, a witness for the plaintiff, being asked: "Q. Do you know the condition of the plug was it put in properly?" answered: "Yes, sir; to the best of my belief it was. They used all precaution necessary." All of the defendant's testimony was to the same effect, and that a person of great experience and capacity for this kind of work was specially employed by the defendant to conduct the operations. Against all this evidence there is not a scrap of testimony to prove negligence either in the appliances used or in the selection of the persons to do the work. That there was some escape of gas when the test was applied proves nothing in support of a charge of negligence. It was for the very purpose of discovering whether gas could escape that the test was applied. It would have been negligence not to apply the test, and the defendant was strictly in the line of its duty when it did so. The plaintiff admits that he heard the gas escaping which was precisely what was to be expected. But the mere escape of the gas inflicted no injury. It was the explosion that did the mischief, and as to the cause of this there is an absolute concurrence of testimony on both sides. The plaintiff testified that McGinty, a fellow-workman, who stood a few feet from him, told him that he struck a match to light his pipe, and the explosion instantly followed. The plaintiff's physician, examined on his behalf, testified that the plaintiff told him that the injury was caused by McGinty lighting a match. He was asked: "Q. Did you hear this man (plaintiff) say anything with reference to what caused the injury? A. I did. Q. What did you hear him say? A. He said it had originated from McGinty lighting a match. Q. Did he charge McGinty with it? A. He did bitterly; said it was McGinty's fault all the way through." McGinty himself was called by the plaintiff, and he also swore that he struck the match and nearly lost his life over it. Other wit TRUNKEY and CLARK, JJ., absent. Rawle's Appeal. Reported, ante, p. 85. J. D. B., Jr. March 5, 1888. THE COURT. The decree entered in the above case is hereby modified so far as to make the costs of the appeal payable by the appellees instead of by the appellants. PER CURIAM. Jan. '87, 164. February 16, 1888. Appeal of Allen et al. National banks — Cashiers — Criminal law—. Act of March 31, 1860, sect. 65-Inapplicable to national banks. March 31, 1860 (P. L. 399), providing that it shall be The sixty-fourth section of the State Penal Code of a misdemeanor for the cashier of a bank to engage in any other business, has no application to cashiers of national banks. Commonwealth ex rel. Torrey v. Ketner, 8 WEekly NOTES, 133, approved and followed. Appeal of Lucien H. Allen et al. from a decree of the Common Pleas of Schuylkill County restraining the appellants from interfering with Thomas H. Carter, in the matter of liquidating and settling up the affairs of the firm of Allen & Co. Bill in equity, by Thomas H. Carter against Lucien H. Allen, Charles F. Allen, and Charles F. Lloyd. The bill set forth that complainant and defendant, Lucien H. Allen, had been in business together, under the firm name of Carter, Allen & Co. That Lucien H. Allen had sold his interest in the firm to the two other defendants, whereby the firm had become dissolved. The complainant claimed the right as continuing and liquidating partner to wind up and settle the affairs of the firm, and prayed for an injunction to restrain defendants from interfering with him in the exercise of that right. ner, 8 WEEKLY NOTES, 133. It was there held that our statutes of 1860, 1861, and 1878, defining and punishing the offence of embezzlement by cashiers of banks had no application to such offences committed by cashiers of national banks. It was contended, however, by the learned counsel for the appellants that there is a material difference between that case and this, and that the rulings in the former do not apply. A preliminary injunction was granted. On motion to continue the injunction, defendants pro- In Torrey's Case he had been indicted in the duced affidavits to the effect that the complainant Quarter Sessions of Schuylkill County for embez was the cashier of a national bank, and set up the zlement as cashier of a national bank. The inprovisions of the Act of March 31, 1860, § 64 dictment was under our State law. At the time (P. L. 399), prohibiting cashiers of national the offence was committed it was punishable under banks from engaging in any other business, and Section 5209 of the Revised Statutes of the United making the same a misdemeanor, as a defence to States. The case was heard upon habeas corpus the bill. The Court, PERSHING, P. J., was of pending the prosecution in Schuylkill County, opinion that the State law did not extend to the and we held that an indictment would not lie cashier of a national bank, and continued the in-under our State statutes; and as the offence was junction accordingly. The defendants thereupon not indictable at common law, we discharged the took this appeal, assigning for error the decree of relator. In commenting upon the Acts of Asthe Court. sembly referred to, it was said in the opinion of the Court: "We are spared further comments upon these Acts for the reason that they have no application to national banks. Neither of them refers to national banks in terms, and we must presume that when the Legislature used the words 'any bank' it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are the creatures of another sovereignty." D. C. Henning and John W. Ryon (with whom were Conrad F. Shindel and James Ryon), for appellants. The provisions of the Act of 1860 apply as well to national banks as to State banks. Com'th v. Tenney, 97 Mass. 50. The power in the United States to create national banks is not among those expressly prohibited to the States under the Constitution of the United States, and the rule as settled in both Pennsylvania and the United States is that where the authority of the States is taken away only by implication, they may continue to exercise the power until the United States exercise their power, because until such exercise there can be no incompatibility. Moore v. Huston, 3 S. & R. 196. Gilman v. Philada., 3 Wallace, 17. The Act of 1860 is a public general statute, of which all are bound to take notice. When an act or contract is prohibited, under a penalty, it is unlawful and void, though the statute does not expressly so declare. Mitchell v. Smith, 1 Bawn, 110. Seidenbender v. Charles's Adm'r, 4 S. & R. 151. Columbia Bank and Bridge Co. v. Holdeman, 7 W. & S. 233. The case in hand is as follows: Thomas H. Carter, complainant, was the cashier of the First National Bank of Tamaqua. At the same time he was engaged in business as a partner in the firm of Carter, Allen & Co. The firm carried on a general foundry, machinery, and boiler manufacturing business in Tamaqua. It was dissolved by the sale of Lucien H. Allen's interest to Charles F. Allen and Charles F. Lloyd. The complainant claimed the right as liquidating partner to the possession of the assets of the firm for the purpose of closing up the business and paying creditors, and filed this bill to enjoin the appellees from intermeddling with him in doing so. Under ordinary circumstances the right of complainant to the control of the assets would be clear. It was resisted in this case, however, upon the ground that under the Act of Assembly bank cashiers are prohibited from engaging in business. The 64th section of the Penal Code of 1860 (P. L. 399) provides: "If any cashier of any bank in this Commonwealth shall engage, directly or indirectly, in the purchase or sale of stock, or in any other profession, occupation, or calling other than that of his duty as cashier, he shall be guilty of a misdemeanor, and being thereof convicted shall be sentenced to pay a fine not exceeding five hundred dollars.” The Act of Congress regulating national banks contains no clause punishing cashiers for engaging | July '87, 123. February 1, 1888. Appeal of Rogers et al. The distinction between Torrey's Case and the Lunatics-Committee of-Liability of, to pay one now before us is this: in the former the for services rendered lunatic prior to their apoffence of embezzlement was punishable under an pointment. Act of Congress: while in the latter there has not been any legislation by Congress making it an offence for the cashier of a national bank to engage in business. It was conceded by the appellees that had Congress legislated upon this subject, such legislation would have superseded our State law, so far as national banks are concerned, but that in the absence of such legislation our State law took effect, and made it an offence for the cashier of a national bank to engage in any occupation or business outside of his official duties. We are of opinion that the distinction referred to is a distinction without a difference. Torrey's Case was decided upon the broad ground that our statutes in regard to embezzling cashiers did not apply to cashiers of national banks and was not intended to. The fact that such persons were punishable under the legislation of Congress was referred to argumentatively as an additional reason why an indictment would not lie under our State law. We held then and we hold now to the broader position that our statutes have no application. The Court having jurisdiction of the accounts of the committee of a lunatic has not power to decree the payment by the said committee of claims for professional services which were not rendered in the proceeding de lunatico inquirendo. A. was arrested, and in prison. A proceeding de lunatico inquirendo was begun. Before the report of the inquisition A.'s counsel procured a writ of habeas corpus, and employed physicians to examine into A.'s condition. The physicians made the examination and prepared a report which was submitted to the Court on the hearing of the habeas corpus. A. was subsequently found a lunatic and a committee appointed. committee for payment for their services, and the comThe physicians having applied for a rule upon A.'s mittee having denied their liability : Held (1) that the services not having been rendered in the proceedings de lunatico inquirendo, the Court had no jurisdiction to grant the rule. (2) that the claimants' proper remedy was by an action at law with notice to the committee of the lunatic. Appeal of George W. Rogers and H. B. Dickinson, committee of the person and estate of Charles Streeper, a lunatic, from a decree of the Common Pleas of Montgomery County directing the committee to make certain payments. The national banks, as was observed in Torrey's Case, are the creatures of another sovereignty. The National Banking Act and its The facts of the case were as follows: Charles supplements, create a complete system for the Streeper, a resident of above county, was arrested government of those institutions. Conceding for an assault and battery upon his wife, and was the power of Congress to create this system, I am committed to jail. He was then found insane unable to see how it can be regulated or inter- and removed to an institution for the treatment fered with by the State Legislature. The Act of of the insane. On November 26, 1886, a pro1860, if applied to national banks, imposes a dis- ceeding de lunatico inquirendo was commenced, qualification upon cashiers of such institutions and on December 8, 1886, the report of the inwhere none has been imposed by Act of Con-quisition was filed and confirmed, finding Streegress. If the State may impose one qualification per a lunatic, and appointing appellants his comupon the cashier, why not another? If, upon the mittee. cashier, why not upon the president or other officer? Nay, further, suppose the Legislature should declare that no person should be a bank director unless he has arrived at fifty years of age, and should be the owner of one hundred shares of stock, could we apply such an Act to national banks? If so, such institutions would have a precarious existence. They would be liable to be interfered with at every step, and it might not be long before the whole national banking system would have to be thrown aside as so much worthless lumber. On December 2, 1886, at the instance of Streeper's counsel, who had begun habeas corpus proceedings in his case, Drs. A. W. Biddle and Charles K. Mills went to the insane asylum and examined into Streeper's condition, and prepared a report thereon. On February 8, 1887, Dr. Biddle filed an affidavit, stating that the above services had taken six or seven hours, and asking for a rule upon Streeper's committee, the appellants, to pay therefor to himself and Dr. Mills, $50 each, and also to himself $25 for attending Court on the hearing of the application The decree is affirmed, and the appeal dismissed for the habeas corpus. L. L., Jr. The committee filed an answer denying their liability, and the Court's jurisdiction. The Court, SWARTZ, J., granted the rule and decreed payment as demanded. Whereupon the was disputed by the committee, who alleged that the services, if they were rendered at all, were wholly unauthorized, and that the estate of the lunatic was in no way liable therefor. Under such circumstances, the Court could not assume to settle the dispute, or to order the payment of a debt which the committee denied. It was the The Court had the power to make this de- undoubted right, not only of the creditor, but of cree. Eckstein's Estate, 1 Clarke, 224. the lunatic debtor, through his committee, to have March 12, 1888. THE COURT. In Wier v. for professional services rendered by Doctors Biddle and Mills is therefore reversed, and it is ordered that the appellee, A. W. Biddle, pay the costs of this appeal. Opinion by CLARK, J. in their previous examination; still the fact re- Jan. '87, 387. C. K. Z. February 17, 1888. Barrett's Appeal. Supreme Court from interlocutory decrees. as part of the expenses thereof; as well might we Equity-Preliminary injunctions-Appeals to embrace the costs of the criminal proceeding and of the habeas corpus and the attorney's charges, in both. The doctors' charges stand upon the footing of an ordinary debt or demand on the lunatic's estate. If their services were reasonably proper and necessary under the circumstances, and were rendered in good faith, at the instance of the attorney issuing the habeas corpus, the lunatic would be liable therefor, as for any other necessary and valuable thing done or furnished him. If the liability of the lunatic's estate had been conceded by his committee, and the price or value of the services had been agreed upon, or otherwise lawfully ascertained, the Court might have required the committee to raise the necessary funds to discharge the debt. But the demand A bill in equity alleged that complainant was a lessee of certain coal tracts; that respondents were operating adjoining tracts; that the respondents and across the dividing line between the two tracts; threatened to extend their mining operations up to that if they did so, complainant's coal would fall; that complainant's coal was loose, disintegrated, and liable to run, and required a pillar of coal to sustain it. The bill prayed a preliminary injunction, which was granted. On motion to continue this injunction the respondents denied that complainant's coal would fall if they mined up to the line, and that any pillar was necessary. The special injunction having been dissolved, on appeal: Supreme Court would not discuss it, in accordance Held, that as this was an interlocutory decree, the with their practice in such cases, and would dismiss the appeal. Semble, that if the Supreme Court would depart from their rule in any case, they would have done so in this instance. Appeal of Simmons H. Barrett from a decree of the Common Pleas of Schuylkill County, dismissing a bill in equity filed by him for an injunction. Bill in equity, wherein Simmons H. Barrett was complainant, and Oliver Ditson and Henry L. Williams respondents. case was heard on a motion to continue this injunction upon affidavits on behalf of both parties. Defendants claimed the right to mine up to their boundary line, and denied that they have ever mined, or intend to, or have threatened, to mine beyond it; that a chain-pillar is necessary to preserve in its natural state the coal or surface embraced in plaintiff's lease; that there is a reasonable ground to believe that plaintiff's coal will slip or fall so as to cause irreparable or even considerable damage to the land in its natural state; The bill alleged: That the respondents are and further denied that they are under any obliengaged in mining coal from the veins on the gation arising from the maxim, Sic utere tuo ut Conrad Mertz tract of land. That the said Mertz alienum non lædas, or from the doctrine of lattract adjoins the John Blackey and Thomas Pas-eral support, to do more than to support the land chall tracts on the north. in its natural state, and that such duty cannot That complainant is the lessee of the right to legally be enlarged or added to, as plaintiff's tesmine the coal from the veins of coal on the timony shows would be necessary, by plaintiff's Thomas Paschall and John Blackey tracts of use of his land for mining purposes; defendants land, and also the lessee of the right to dig and further claim that the doctrine of lateral support mine the coal from the George Flower tract ad- has never been applied either in this country or joining. That the two leasehold estates and im- in England to prevent adjoining mine owners provements are held and used as one colliery. from mining to their boundary lines, and that in That the defendants have extended and threat-reason it should not be. ened to extend their mining operations on the The Court dissolved the preliminary injunc veins of coal on the said Mertz tract up to and tion, filing no opinion, but stated that the Judges across the line which divides the said tract from the were unable to agree. Whereupon the said said Paschall and Blackey tracts. That the veins Simmons H. Barrett took this appeal, assigning of coal on the said tracts of land lie at an angle of for error the dissolution of the preliminary inabout forty-nine degrees, pitching northward, and junction. that if the defendants mine the coal on the said Mertz tract up to the land line, the complainant's coal will slip and fall into the defendants' mining operations below. That the Buck Mountain vein of coal in said tracts contains a loose and disintegrated layer of slate, coal and sulphurous deposits, called "undermining," which is liable to run, and to maintain the dividing boundary between the respective workings will require a pillar of coal of sufficient size to sustain the complainant's upper workings. That the defendants have no right to mine the coal up to the boundary line, nor within such a distance of said boundary as to cause the coal upon complainant's tract to slip and run or to otherwise weaken the support of said vein. That a chain pillar of at least thirty yards should be left in place between the upper and lower workings in said veins. That if the defendants are permitted to mine the coal, as they threaten to do, great and irreparable injury will be done to complainant, for which he has no adequate remedy at law. The bill prayed (1) That the respondents be restrained temporarily until hearing and perpetually thereafter from extending their mining operations beyond a point fifteen yards north from the boundary line between complainant's and respondents' tracts. (2) Other and further relief. A preliminary injunction was granted, and the S. H. Kaercher and James Ryon, for the appellant. Our right to appeal in this case is based on the Act of Assembly of June 12, 1879 (Purdon's Dig. 699, pl. 57), authorizing appeals to the Supreme Court from the refusal of a special or preliminary injunction. Mason Weidman and John W. Ryon (with them Edmund D. Smith), for the appellees. The Supreme Court will not, under the said Act of Assembly, interfere with the action of the Court below when the facts are disputed or insufficiently presented. March 12, 1888. THE COURT. This was an appeal from the refusal of the Court below to continue a special injunction. It has been our practice for several years not to discuss appeals from interlocutory orders or decrees. If any case could tempt us to depart from this rule it is the present one. It involves an important and interesting question. We will not make it an exception, however, as time and experience have fully vindicated the wisdom of our practice. It will be time enough to discuss the question involved when the case comes here upon appeal from a final decree, and we have all the facts before us. In the meantime we see no sufficient reason to interfere with the action of the Court below. |