same manner, without production of the bill of lading, and that no notice had ever been given in such cases to the railroad company by the bank of the acceptance of the drafts. Whann also testified on behalf of defendant that he had informed plaintiffs prior to the making and the shipment by them that he was accustomed to receive the bones without producing the bill of lading. The Court charged as follows: "It is sufficient for me to say to you that this having been a consignment to the order of the plaintiffs, which was brought home to the notice of defendant by the manifest received by its agent and production to bim of the invoices showing that the delivery of the bones in question was to be made upon the production of the bill of lading, and that there is, in my judgment, nothing in the evidence thus far which excuses the defendant for failure to make delivery according to these terms. In other words, that they could only properly deliver upon the production of the bill of lading, or upon the consent of the plaintiffs, or permission of the plaintiffs given to them in some other way than any which has appeared in evidence in this case. That being my view, the proper verdict for you to render in the case is a verdict for the plaintiffs for the amount of $310.15, with interest from the time when the delivery was made." Shenck v. The Phila. Steam Propeller Co., 10 Sm. 109. Penna, R. R. Co. v. Miller and Wife, 6 Norris, 395. Phila. & Reading R. R. Co. v. Ramsey, 8 Norris, 474. The construction and effect of the papers, and the understanding between the parties, under all the circumstances of this case, should have been left to the jury. Barreda et al. v. Silsbee et al., 21 Howard, 185. R. R. Co. v. Stout, 17 Wallace, 663. method of delivery by a carrier is a question for The question of acquiescence in a certain the jury. Haslam v. Adams's Ex. Co., 1 Bosworth, 235. Edward E. Nicholas (Charles Davis with him), for defendants in error. The carrier clearly delivered the goods in violation of a well-settled rule of law, without production of the bill of lading. Hieskell v. Bank, 8 Norris, 155. Downs v. Milwaukee Bank, 1 Otto, 618. submit to the jury. Cox v. Hiesley, 7 Harris, 243. Verdict and judgment for the plaintiffs accordingly. Defendant thereupon took this writ, as-sible to vary the express contract. signing for error the charge of the Court as above. Parol proof of the custom or usage was inadmis George Tucker Bispham and John Hampton Barnes, for the plaintiff in error. It is contended that it was the duty of the carrier to ascertain whether or not the draft had been accepted before delivering the goods. This, it is submitted, was not the carrier's duty. It should deliver upon the bill of lading or else in accordance with a contract other than the bill of lading, and this is what the carrier did. It fulfilled its duty in accordance with the implied contract between the parties. Evidence of a custom or usage between the parties affecting and forming a portion of the contract, was properly admitted in this case. Hursh v. North et al., 4 Wright, 241. 510. There was ample evidence in this case of knowledge on the part of the plaintiffs of the manner in which the bones were usually delivered and of implied acquiescence in it by them. Where a carrier does not make a proper delivery of goods intrusted to it, it is guilty of negligence in the performance of its duty, and the determination of this question is for the jury. Ludwig v. Meyer, 5 W. & S. 435. Bolton v. Colder, 1 Watts, 360. February 20, 1888. THE COURT. The only error assigned is to the charge of the Court. It was in substance that the defendant company could only deliver the merchandise upon the production of the bill of lading, and that as there was nothing to excuse delivery without a compliance with the terms, the jury should find for the plaintiffs. We see no error in this. The plaintiffs shipped this carload of dry bones from Bay City, Michigan, to Landenburg, Chester County, Pa., consigned to themselves. At the same time they drew on Whann for the amount at forty-five days. There was a bill of lading attached to the draft showing that Stern & Spiegel, the shipletter of the latter to Whann, and the invoice, pers, had consigned said car to themselves. The both of which were shown to the agent of the defendant company at Landenburg, were notice that there was a draft and bill of lading, and that Whann was required to protect the draft. The agent delivered the car to Whann without the bill of lading, and without an acceptance of the draft. This he had no right to do. The title to the property remained in the consignors until delivery in accordance with the conditions. Bills of lading are symbols of property, and of plaintiff was allowed to testify that the company defendant was in the habit of refusing to adopt certain motives, which could be had by paying for them; that appliances to modify the discharge of smoke from locobecause these appliances were patented the defendant refused to pay a bonus for their use, but when the patents expired they would adopt them into general use: Held, that this evidence was irrelevant and inadmissible, and that as the only effect of it was to create or tend to create a prejudice against the company defendant, the refusal of the Court to strike it out, on motion of the defendant, was error. In the above action the plaintiff produced evidence to show that three trains had passed along defendant's road shortly before the fire broke out, emitting cinders, smoke, and small sparks about the size of a pea. Also, that the wind was blowing from the track to the barn, It was urged, however, that there was a course and that sparks had been known to have been blown of dealing between the parties that would take that distance. There was no evidence of any defect in the case out of the rule above stated. The at- the spark arresters on the engines. The defendant tention of the Court below does not appear to produced evidence to show that the spark arresters have been called to this matter upon the trial. that they were not out of repair. The Court left to were of the best character and in general 'use, and No reference to it is to be found in the charge, the jury the question whether the spark arresters were nor was any point submitted which would call it in good condition. Verdict and judgment having forth. There was evidence that the defendant been rendered for the plaintiff, the defendant, inter company had on more than one occasion deliv-alia, assigned for error the failure of the Court to ered goods from the same shippers to Whann prior to the acceptance of the drafts. No harm came of this because the drafts were afterwards accepted and paid. But this course of dealing the company and Whann was brought home to the knowledge of the plaintiffs in a way that would justify the jury in finding that they had acquiesced in such an arrangement, and that they had consented to the delivery of this particular carload without the production of the bill of lading and acceptance of the draft. The company delivered in their own wrong and between assumed the risk. not Nor can we say as matter of law that plaintiffs suffered no loss by reason of the improper delivery. If the draft had been accepted it might have been paid notwithstanding the failure of charge that on the weight of the evidence the verdict should be for the defendant: Held, that though the Court was of opinion that there was no evidence of negligence on the part of the defendant it would not reverse on that ground, inasmuch as the Court below was not asked by the defend whole testimony. ant to give a binding instruction to the jury on the In the above case it was held that the defendant was not entitled to inquire of the plaintiff on crossexamination where he had placed the insurance on his barn. In the above case evidence was held admissible for the plaintiff to show generally the effect of wind upon smoke coming from a locomotive, and as to how far parties had known sparks to be carried generally, without limiting the witnesses to conditions similar to those on the day in question. Error to the Common Pleas No. 3, of Phila Whann, or the plaintiffs might have sold it with-delphia County.. Case, by George Page against the Pennsylvania Railroad Company to recover damages for the burning of the plaintiff's barn, alleged to have been occasioned by sparks from the engines of the company defendant. On the trial, before FINLETTER, P. J., the plaintiff proved the burning of the barn in question, which was one hundred and fifty feet from the defendant's track. Three trains had passed along the road shortly before the fire broke out. Witnesses were called on behalf of the plaintiff, who testified that the engines of these trains were emitting cinders, smoke, and sparks about the size of a pea. These witnesses were not near the barn in question. The wind was at the time blowing from the track directly towards the barn. The plaintiff also produced witnesses to testify generally as to the effect of wind upon smoke coming from a locomotive, and Gavin W. Hart (David W. Sellers with him), as to how far they had known sparks to be carried for the plaintiff in error. generally, without limiting them to conditions similar to those on the day in question. Objected to by defendant. Objection overruled. Evidence admitted. Exception. On cross-examination the defendant asked the plaintiff whether he had any insurance on the barn, to which he replied in the affirmative. He was then asked where he got the insurance. Objected to by plaintiff. Objection sustained. Exception. The defendant proved that the engines in question were fitted with spark arresters of the best character and commonly in use on engines. Also, that said engines were in good condition and properly run. Several witnesses testified that a spark from such an arrester would not go further than fifty feet. The right of the insurer to bring suit against the railroad company is clear. Kennebec Ice Co. v. Wilmington and Northern R. R. Co., 13 WEEKLY NOTES, 62; 14 Id. 554. Upon their being informed as to the names of the insurance companies they would have had the opportunity of ascertaining the proof of loss, which may or may not have agreed with the plaintiff's testimony while on the stand. They would also have had the opportunity of protecting themselves against further litigation by causing an adjustment of the damages to be made between the insurers and insured, and of giving notice of the existence of this suit, which should be for their benefit. As it stands at present, the railroad company may be called upon to answer to the writs of four or five insurance companies against which no defence could be interposed, as knowledge has been brought to the defendant below. The investigation in this case was limited to the condition of the spark arresters of the locomotives alleged to be in fault, and to these alone. If these were proper ones and in good order, it made no difference if, as the Court says, the railroad "fired every rod of land in the country." There was no evidence of negligence to submit to the jury. R. R. Co. v. Yerger, 23 Smith, 121. The plaintiff in rebuttal called a witness as an expert and read to him the defendant's testimony as to the running of the engines, and asked him whether, assuming the evidence to be true, the engines were properly run. He replied that they were. He was then asked whether he was able to say whether the engines were properly fired and managed at the time, to which he replied as follows: In my opinion I think there could be a great improvement in the management of all their locomotives." This answer was objected to, and the witness allowed to explain himself as follows: "I would like to say in explanation of my answer that the Pennsylvania Railroad is very liberal, and allows outside people like myself to have all the information of what they are doing. As regards the general management of a railroad they stand second to none in this country; but there are certain appliances that they refuse to adopt which would modify very materially the amount of smoke that is emitted from their locomotives, and which can be had for the paying for it, but, as they are patented they refuse to pay a bonus to use that apparatus until the time has expired, when they take and use it, and their present locomotives are now using apparatus that were patented for years, and they never used it; but when the patents ran out they adopted them, Under the sixth assignment, however, evidence and they are in general use on their road." was admitted, whieh in our opinion, was entirely Defendant moved to strike out all of this state-incompetent, and on that ground we reverse the ment, which the Court refused to do. Exception. (Sixth assignment of error.) The Court left to the jury the question to determine whether or not the spark arresters were in good condition. Verdict and judgment for the plaintiff for $3955.60. The defendant thereupon took this writ, assigning for error the admission of evidence as above and the failure of the Court to charge that the jury should find a verdict for the defendant on the weight of the evidence. The evidence admitted was clearly erroneous. February 20, 1888. THE COURT. We are of opinion there was no evidence of negligence in this case on the part of the defendant, but we cannot reverse for that reason because the Court was not asked to give a binding instruction to the jury on the whole testimony, and it was not error to omit to do what they were not asked to do. judgment. We refer to that part of the testimony of W. B. Levan, which was offered and admitted under exception as an explanation of his previous answer. After it was all in, the defendant's counsel moved to strike out the objectionable matter but the Court refused to do so, to which defendant excepted. The substance of the testimony thus admitted, was that the defendant was in the habit of refusing to adopt certain appliances to modify the discharge of smoke from locomotives which could be had by paying for them; that because these appliances were patented the defendant refused to pay a bonus for their use, but when the patents expired they would adopt them into general use. We are quite at a loss to understand how this evidence could explain anything in the previous answer of the witness, or how it could throw any light upon the question whether the spark arrester in use upon the engine which caused the fire in this case was up to the standard of such spark arresters as the defendant was bound to use. The only effect of the testimony that is apparent was to create, or tend to create, a prejudice against the defendant, and that purpose was clearly illegitimate. The other assignments are not sustained. TRUNKEY and WILLIAMS, JJ., absent. of said line it shall not be lawful for any owner or builder to erect any new building or to rebuild or alter the front of any building now erected without making it recede so as to conform to the lines established for a width of sixty feet. The petitioners set forth that they were obliged to rebuild their properties; that in so doing they were compelled by above ordinance to recede five feet, and that said five feet had been taken by the city of Philadelphia as a public street pursuant to said ordinance. The petitioners prayed for the appointment of a jury of view to assess their damages. Viewers were appointed accordingly. The city of Philadelphia then applied for a rule to quash the petitions on the ground (1) that the proceedings were irregular and void; (2) that the Court had no jurisdiction, and (3) that the land did not appear to have been taken by any competent order to open or widen the street at the points named in the petitions. The rule was granted accordingly, but was subsequently discharged. The jury of view reported damages for petitioners. Exceptions were filed to the report on the ground of certain alleged errors of fact, and also because the petition and proof failed to show an appropriation to public use of the strip of five feet, for the taking of which damages were claimed, and the Court was without jurisdiction. The exceptions were subsequently dismissed by the Court, in an opinion by BIDDLE, J., and the report confirmed. (See 20 WEEKLY NOTES, 77.) Whereupon the city of Philadelphia took this The councils of the city of Philadelphia had power under the Act of June 8, 1881 (P. L. 68), and previous legislation to pass the ordinance of March 31, 1884, directing the city plans to be so revised as to increase the width of Chestnut Street to sixty feet, and direct-writ, assigning for error the discharging of the ing that after the establishment of such lines, no new rule to quash the petition, the dismissal of the building should be erected or old building rebuilt exceptions to the viewers' report, and the conwithout receding so as to conform thereto. firmation of said report. City councils were not obliged under existing legislation to proceed to direct the widening of the entire street at once by an ordinance giving three months' notice to the property owners to recede. When a property owner on Chestnut Street is obliged to rebuild and in pursuance of the existing ordinance recedes from his former line so as to increase the width of the street to that extent, the property so added to the street is taken for public use, and the party rebuilding is entitled to have a jury of view to assess the damages sustained by him in consequence. William H. Addicks, assistant city solicitor (Charles F. Warwick, city solicitor, with him), for the city of Philadelphia. The power to widen Chestnut Street was conferred by the Act of February 2, 1854, § 27; the Act of April 21, 1855, § 7; the Act of June 6, 1871 (P. L. 1353), and the Act of June 8, 1881 (P. L. 68), which, construed together, would seem to give the city ample power to open, widen, vacate, or change the grade of either plotted or opened streets, and to revise the public Certiorari to the Quarter Sessions of Philadel-plans without limitation, in its discretion. phia County. Petition of George H. McFadden et al., owners of properties on the north side of Chestnut Street, between Front and Second streets, setting forth an ordinance of the city of Philadelphia approved March 31, 1884, as follows: SECTION 1. That the Department of Surveys be and is hereby authorized to revise the city plans so as to make Chestnut Street, from the Delaware River to the Schuylkill River, of the width of sixty feet, widening equally on both sides from the old centre line. SECT. 2. After the confirmation and establishment But while those large powers have undoubtedly been conferred, yet, in the exercise of such powers, being created by statute, the municipality must follow the statutory rules which regulate the method in which these powers are to be carried into effect, That is First. A plotting which, by operation of law, restricts the owner in the use of his property, so that no addition to the public burden of damages for opening streets can be made by erection of valuable improvements over the street lines, under the penalty of removal at the expense of the owner when the street is ordered open. Second. An opening at such time as the councils may deem the public exigency demands it, by an ordinance and three months' notice to property owners, etc., as expressly required by the Acts granting to the municipality the powers of eminent domain. Street, and being about to tear down and rebuild the same, they were obliged to recede five feet from the old line of the street by virtue of an ordinance of the city councils approved March 31, 1884, widening Chestnut Street from the Delaware to the Schuylkill to the width of sixty feet; widening equally on both sides from the old centre line. The second section of said ordinance provides that "After the confirmation and estab Third. The payment of any damages assessed for taking, injury, or destruction of private prop-lishment of said lines, it shall not be lawful for erty by reason of such opening. There is no statute which gives the Court the jurisdiction asserted by the petitioners in this case, and the ordinance set forth in the petition does not amount to the taking of land for public use, but the plotting of a street line in advance of such taking. any owner or builder to erect any new building or to rebuild, or alter the front of any building now erected, without making it recede so as to conform to the lines established for a width of sixty feet." This action of city councils was authorized by the Act of 8th June, 1881, P. L. 68, and previous legislation; so much was conceded by the learned counsel for the city, but they contended that inasmuch as this is a statutory proceeding, the municipality must follow the statutory rules which regulate the method in which these powers are to be carried into effect. Until the councils, in the manner provided by law, or the Court, under its statutory powers, have made an order for the taking of property and directed the opening of the street, the owner must use his land as best he can, retaining possession of the same subject to the inconvenience of a plotting in advance of an opening. It will be observed that the plotting of the While plotting in advance of opening may re-street, upon the city plan so as to conform to the sult in inconvenience to some few, in the vast new line interferes with no one in the use and majority of cases it is a great advantage, enabling the owners to anticipate the public improvements and improve their property advantageously in conformity therewith. John G. Johnson and J. Sergeant Price, for the defendants in error. The whole subject is discussed in connection with the Act of April 28th, 1870, in— City v. Linnard, 10 WEEKLY NOTES, 148. February 13, 1888. THE COURT. Several of the assignments of error are to questions of fact which we have no means of correcting, even if erroneous. A writ of certiorari, as we have said at least a hundred times, brings up nothing but the record, and we can correct such errors only as are apparent upon its face. Thus we have no means of knowing whether the parties to whom damages have been awarded are the owners of the properties in question, beyond the finding of the jury. The city solicitor will doubtless see that the damages are paid only to parties who are legally entitled to them. The seventh and eighth assignments raise the only questions which need discussion. They are substantially that the record fails to show an appropriation to the public use of the strip of five feet of ground; and secondly, that the Court below had no jurisdiction to entertain this proceeding and confirm the report of the viewers. Either of these objections, if well founded, would be fatal to this proceeding. The defendants are owners of property on the north side of Chestnut Street, below Second enjoyment of his property until he comes to rebuild. This may be in a year or it may be in one hundred years. When the property owner does so rebuild, he must recede five feet. It is then that he is injured, if injured at all; and it is then that his land is taken for public use, and he is entitled to have a jury to assess the damages. It would be a disastrous event were we to hold that councils must proceed to widen the entire street at once by an ordinance giving three months' notice to property owners to recede. Such a proceeding would take buildings as well as land, and would cost many millions of dollars, if it did not bankrupt the treasury. The city is' proceeding cautiously and in the only practical way by which such a street can be widened. The process will probably occupy nearly a hundred years. It is done gradually, and in a way to produce no great strain upon the city treasury. Few of those now living will derive much benefit from it; the advantages will be reaped principally by another generation. The Act of 28th April, 1870 (P. L. 1291), bad already provided for the widening of Chestnut Street by taking off five feet on the southern line thereof: Provided, That this Act shall not interfere with any buildings now erected on the south side of Chestnut Street." In the City v. Linnard (97 Penna. 242), the defendant, being about to erect a new building on the south side of the street, petitioned for a jury to assess the damages. which she sustained by reason of being compelled to recede. It was claimed that she was not entitled to any damages, because the injury of |