be observed that the description of the land taken does not except the plank road but only states that it is subject to the easement of the plank road. It is alleged by the land owner that the plank road has been abandoned, but it appears from the evidence that a street car line is in operation over it. It was, therefore, entirely proper for the railroad company to take the land, subject to the rights of the plank road company whatever they may be, and it will be for the viewers to ascertain to what extent the land is already subject to an easement, which may affect the amount of damages. right of the board of directors of the railroad company to detetmine within the limit of their powers what lands are necessary for their purposes. If they take lands in such a way as to injure the remaining land of the owner in any way, they are responsible in damages, and if the taking of the land to the harbor line will deprive the owner of his riparian rights, whether the land between high and low water mark be actually taken or not, he is entitled to compensation in this proceeding for his riparian rights without regard to the land actually taken. It is further objected that the petition for the appointment of viewers does not set out in terms the resolution of the board of directors by which the land in question is said to have been appropriated by the railroad, and does not show for what particular width of the land taken in this case is to be used, which as we understand it is about four hundred feet, including the original right of way of 66 feet. It may well be that, when challenged by the land owner in a proper proceeding, the railroad may be The reason alleged for setting aside the appointment of viewers is that a board of viewers, composed of the same persons, was at the same time appointed to view a property in the vicinity of the property in question in this case, and that before the hear-railroad purposes a tract of land of the great ings were begun in the present case, the viewers had made an award in the other case, and had, therefore, as the reason alleges "committed themselves as to a limit of valuation of the property of the McKelvey Grove Improvement Company sought to be condemned." If it were shown that the prop-shown to have exceeded its power in undererties were very similar in character there might be some merit in this suggestion. The properties, however, in this case are not adjacent, and it does not appear definitely how far they are apart, but it does appearing to take any part of his land without that in the present case a large part of the land taken is steep hillside, and, in the other case, in which the same viewers acted, the land was wholly on the river bottom. It is plain that the value per acre of these two kinds of land is very different. We are of opinion, therefore, that this furnishes no sufficient reason for setting aside the appointment of the viewers. Some other matters were alleged by counsel for the land owner upon the argument, which are not set up in the reasons for the rule. One of these is that the description of the land to be taken which is on the bank of the Monongahela river, calls for the United States harbor line of the Monongahela river, thereby expressly excluding the ground between that line and low water mark, and that, by such a taking, the land owner will lose his riparian rights without proper compensation. It is the undoubted taking to take so wide a strip of ground, but the present proceeding is not one in which that question can be tried. If the land owner conceives the company to be attempt right he may undoubtedly maintain a bill to prevent the taking, or, if the company has already entered upon the land, he may maintain an ejectment to recover his possession; Robinson v. The Railroad, 161 Pa. 561. In the present proceeding, the viewers, and the court and jury upon appeal, are to determine what lands and rights of the land owner have been taken, injured or destroyed and the amount of the damage, but it certainly cannot be claimed that the viewers have power to pass upon the right of the railroad company to take the land, and the court, upon appeal from the viewers, has no power to enter into any questions which were not properly determinable by the viewers. The rule is therefore discharged. For plaintiff, Johns McCleave. For defendant, Schoyer & Hunter. The above action was one in assumpsit in which the plaintiff, a real estate agent, claimed commissions under an alleged contract between himself and defendant; the contract giving the plaintiff the exclusive agency for the sale of certain real estate owned by defendant, and also alleging that during the continuance of said contract the property was sold by defendant through another agent. The defense to the action by defendant was that the contract was secured by fraud and deceit on the part of plaintiff. The issue was then, substantially, the validity of the contract. The court instructed the jury that if they found the contract to be valid plaintiff would be entitled to the full amount of his claim, with interest, but if invalid the verdict should be for defendant. The jury apparently totally disregarded the charge of the court, finding a verdict for plaintiff in the sum of ten dollars, being but a small fractional part of his claim. We are therefore constrained to grant a new trial. For plaintiff, B. J. Reid. IN Matter of Dresser, 10 Am. B. R. 270, it was held that a bankrupt is exempt from arrest upon civil proceedings in a State court, while he is in attendance upon the bank. ruptcy court in the performance of his duties to the bankrupt estate. WHERE a debtor being unable to pay his debts and having a large amount of property which he honestly and in good faith desires should be applied ratably to the payment of his debts, he has a perfect legal right to make a general assignment for the benefit of his creditors, and is under no legal obligation to have himself adjudged a bankrupt; Summers v. Abbott, 10 Am. B. R. 254. THE payment at maturity of one of two of his notes by the bankrupt while insolvent, and within the four months period, to a bank which had purchased the notes of the payee, constitutes a preference which must be surrendered to entitle the bank to prove a claim upon the other note which had not matured at the time the first note was paid; In re Thompson's Sons, 10 Am. B. R. 288. SINCE the amendment of 1903 to the Bankrupt Act, the bankruptcy court has power, between the time an involuntary petition is filed and the selection of a trustee, to enjoin all persons within its jurisdiction from doing any act that will interfere with or prevent the due administration of the Bankruptcy Act, and comity does not require said court to compel persons, whose rights are seriously jeopardized by proceedings in a State court to resort thereto for protection; Matter of Hornstein, 10 Am. B. R. 308. ONE of the most remarkable cases ever tried was recently decided at Decatur, Ga., WHILE the language of section 57n for- according to the Smoker's Magazine. A young bidding proof of claims subsequent to one man bought 2,000 cigars and had them inyear after the adjudication, etc., is unquali-sured for their full value, smoked them up fied, it cannot be intended to govern the and demanded his insurance claiming that allowance, if a claim offered for proof after they had been destroyed by fire. The case the expiration of the year, where the delay was caused by the fraud of the bankrupt in was taken to court, and the judge decided The fire insurso preparing his schedules as to lead credit in favor of the young man. ors to believe that there was practically no ance company then had the young man estate for distribution. In such case the arrested for setting fire to his own property, bankrupt is estopped from making objection and the same judge ordered that he pay a to the proof; In re Towne, 10 Am. B. R. 284. | fine and go to jail for three months. Pittsburgh Legal Journal ment of viewers to assess the damages, costs ESTABLISHED 1853. EDWARD B. VAILL, EDITORS. N. S. Vol. XXXIV. 0. S. Vol. LI. PITTSBURGH, PA., DECEMBER 9, 1903. and expenses resulting from the improvement as required by the Act of May 16, 1891; Hanover Borough's Appeal, 150 Pa. 202; Seaman v. Borough of Washington, 172 Pa. 467, and Beltzhoover Borough v. BeltzNo. 21. hoover, 173 Pa. 213. The viewers' report was confirmed nisi July 13, 1903. To this report numerous exceptions were filed by Laura L. Denniston, George H. Shickler Court of Common Pleas No. 1, and W. L. Mellon-several of the exceptions ALLEGHENY COUNTY. In re GRADING, PAVING AND Exceptions to viewers report-Act of May 16, as proof of the date was supplied by the minutes of council. (2) In the absence of proof to the contrary, regularity in passing and publishing an ordinance is presumed. (3) An exception, that one-third of the cost of grading, etc., should have been assessed against the borough, is untenable. No such arbitrary rule of assessment is required by the Act of May 16, 1891. No. 1049 March T., 1903. In re exceptions to report of viewers. covering issues of fact that can only be raised upon the appeals from the report of the viewers. The exception that one-third of the cost of the improvement should have been assessed against the borough is untenable. No such arbitrary rule of assessment is required by the Act of May 16, 1891. Nor is the exception sustained by the borough ordinance of April 10, 1901, for submission to the voters of the borough the question of increasing its indebtedness by the issuance and sale of municipal bonds for the purpose of paying one-third of the total costs, damages and expenses for grading, paving and curbing of streets thereafter to be improved. The ordinance under which the avenue was improved was passed, and the contract under which the work was done was let long prior to the passage of said bond ordinance. The exception that in the original draft and passage of the ordinance the date was omitted is immaterial; City of Allentown v. Opinion by BROWN, J. Filed November Grim, 109 Pa. 113. The date, August 7, 7, 1903. This matter arises upon exceptions to the viewers' report assessing the costs, damages and expenses of grading, paving and curbing Denniston avenue, in the borough of Swissvale. Leading up to the exceptions, the proceeding arose in this way: Upon August 7, 1901, the borough councils passed an ordinance for the grading, paving and curbing; and shortly thereafter let a contract to McCready Bros. for the work, which was completed by them in June, 1902. The final estimate of the amount due the contractors and the certificate issued to them were duly approved by resolution of the borough councils. Upon the 21st of February, 1903, the borough presented a petition for the appoint 1901, was supplied by the minutes of council, and inserted in the ordinance as transcribed in the ordinance book; and the ordinance as transcribed was signed by the president of council and by the burgessso that they verified and approved the transcription of the secretary. The exception that notice of the passage of the ordinance of August 7, 1901, was not advertised as required by the Act of April 3, 1851, is not sustained. In the absence of proof to the contrary (of which there is none) ordinance is presumed; Grier v. Borough of regularity in passing and publishing the Homestead, 6 Superior 542; Penna. R. R. Co. v. Greensburg Ry. Co., 176 Pa. 569. Aside from this presumption, Mr. Lee testifies that the notices were duly published and posted. The contract of the borough with McCready Bros., with the consent of the borough council, was let by its engineer; and upon completion of the work councils passed a resolution approving the final estimate due the contractors and directing the issuing of a certificate therefor; Lansdowne v. Citizens Electric Light and Power Co., 206 Pa. 188. There is no merit in the exceptions to the forms of the petition and decree for the appointment of viewers and of the precept issued to them. They are strictly in accordance with the statutory requirements. The exceptions (a) that the contract price for the improvement was excessive and grossly extravagant; (b) that the amounts assessed are grossly in excess of the real benefits, and (c) that the viewers failed to inquire into the details and value of the materials and work in and about the grading, paving and curbing-but relied wholly upon the contract price therefor, and the figures obtained by them from the Swissvale authorities-are not sustained by the evi dence. The proceedings for the street improvement having been conducted substantially in accordance with the statutes and decisions thereunder the exceptions are overruled and the report of the viewers is confirmed absolutely. For exceptants, William M. Watson and W. S. McDowell. For borough of Swissvale, Edward McSweeney. Opinion by MCCLUNG, J. Filed June 26, 1903. The jury in this case was instructed to find for the defendants. The admitted facts are as follows, viz: Plaintiff was or had been employed by defendants as bookkeeper and had a claim for wages then due which he now says amounted to $116. He brought suit for his wages before, a magistrate, putting his claim at $12. Defendants were served with the writ, and before the day of the hearing went to the magistrate's office and paid the full amount of the claim and the costs. Plaintiff received his claim from the magistrate and receipted for it, and thus ended the suit. Subsequently he sued for $104, the alleged balance of his claim, and this suit is the one now before the court on appeal. Plaintiff explains his action by saying that he believed the balance of his claim above the $12 had been assumed by the senior member of defendant firm, and he sued him on the same day for said balance. The bringing of this latter suit does not seem to have been known to defendant when the payment of the $12 and costs was made. Defendants say that the real balance due plaintiff when he first sued was $8, but that they paid the $12 because the difference was not worth a contest. We must of course assume that the jury might have found that the real amount due was $116. On the other hand, there is no averment Court of Common Pleas No. 3. that the present condition of affairs was ALLEGHENY COUNTY. TRELISKY v. SILVERMAN et al. Former recovery-Bar to subsequent suit-Payment to justice before hearing. A brought suit for wages before a justice of the peace against B for $12. B paid the claim and costs before a hearing to the juistice who paid it to A. Subsequently A sued B for $104, claiming the original amount due was $116, but owing to a mistake he had only sued for $12. Held, his action was barred by the former recovery. No. 472 Aug. T., 1902. Rule for new trial. brought about by any trick or fraud on the part of the defendants. The peremptory instructions were given upon the ground of a former recovery and consequent estoppel. "Former recovery may be a bar even when it appears from the record that it does not cover the ground of the subsequent suit. For as an entire cause of action cannot be divided, a judgment in favor of or against the plaintiff, for part, will be as conclusive against the right to maintain an action for the residue as if it had embraced the whole." Smith's Leading Cases, Vol. 2, part 2 J. 930; Simes v. Zane, 24 Pa. 242; Logan v. Caffrey, 30 Pa. 196. In this case plaintiff's cause of action was undoubtedly an entire one. See above Pennsylvania cases. tiff everything he could have gotten by a judgment in his favor and its payment and satisfaction. There was certainly at least There was not in the present case a formal an implied agreement that this should have judgment, but was there not the equivalent the effect of a judgment and satisfaction. of a judgment? It is just as conclusive as where, before It, of course, must be conceded, as it is judgment, the defendant in ejectment yields well settled that a judgment before a magis-possession; and this puts the parties in the trate is as conclusive as a judgment of a same position as if judgment had been court of record. The present case seems to present the exact equivalent of the payment into court by defendant, before judgment, of the entire claim of plaintiff with costs, and the acceptance of this by plaintiff in satisfaction of his claim. Such payment and acceptance was treated as a judgment and given the same conclusiveness; in Riggs v. Burbridge, 15 M. & W. 598, and in Canaan v. Reynolds, 5 E. & B. 300-306, was said to be the same thing. Says CROMPTON, J., "In that case the defendant had paid money into court and the plaintiff replied by taking it out. The costs were taxed and paid. This was not in form a judgment, but it was in substance the same thing. It was a solemn entry on the record terminating the litigation, and whilst it stood, estopping the plaintiff.” It is the judgment, not the verdict, which estops; yet "when parties agree expressly or impliedly that a verdict shall be final and conclusive between them, without the entry of judgment, it will operate as an estoppel.' Shaeffer v. Krutzer, 6 Binny 432; Estep v. Hutchman, 14 S. & R. 435. In the present case the defendants went to the magistrate's office before the day of hearing, learned the amount of the claim, and paid it in full with the costs. The magistrate took the money, noted it on his docket, paid the claim to plaintiff and took his receipt. (Just what he would have done had the payment been made after entry of judgment.) After some time plaintiff sues again on this entire cause of action. There is no effort to get rid directly of the effect of the first suit, and if plaintiff recovers in the second suit, all the costs will be taxed de narr. entered; Shaeffer v. Kreitzer, 6 Binny 432. Plaintiff's counsel refers us to a case in the court of common pleas of New York— Cushman v. Bean, 2 Hilton's Reports 340. That case differs from the one in hand in that there the payment was made to the plaintiff, and he then discontinued the case. In addition to this the decision was put upon the ground that the causes of action were separate and distinct, and this alone was sufficient answer to defendants plea. The rule for a new trial is discharged. (C. P. No. 3, Allegheny Co.) GEYSER v. REYMER BROS. Contributory negligence-Defective boiler— Plaintiff the engineer in charge. In a suit for injuries caused by a boiler explosion it was shown that A, the plaintiff, had been the engineer in charge of the boiler for thirteen years, and it was his business to report any defects in the boiler and have the same repaired by a boilermaker. The explosion was caused by the mud-drum having become reduced in thickness owing to corrosion. Held, A was negligent in not ascertaining the condition of the boiler and he could not recover. No. 432 Nov. T., 1901. Opinion by EVANS, J. Filed June 13, 1903. The plaintiff's testimony showed that the defendants were manufacturers of candy in the city of Pittsburgh, and in the pursuit of their business had a stationary engine and boiler in the basement of their manufacturing establishment, and for thirteen years the plaintiff had been the engineer in charge of the boiler and engine of the defendants. There was here an admission of plaintiff's entire claim, and a payment of it and ac- On the 25th of June, 1900, the plaintiff ceptance of that payment which gave plain- | went to his engine room a little before seven |