that until we had them in the bill of excep-
tions, we never thought that there was any
sympathy between ribs and green sticks, or
dry ones. We all know that in the vicissitudes
of fortune and the mutations of time all
things change, ribs not excepted. We do
not think that these changes are, in the case
of ribs, uniform as to time, but are depend-
ent somewhat on the strength, character and
environment of the particular rib, and we
must decline to lay down an ironclad rule
to settle for all ages when, if at all, a rib un-made necessary by such location.
der the process of fracture will not imitate a
green stick undergoing the same process.
The case is entitled Gorman v. St. Louis

A statute requiring notes given for patent rights to state that fact on their faces is held, in State v. Cook (Tenn.) 62 L. R. A. 174, not to be unconstitutional.

Transit Co., 70 Southwestern Reporter, 731.

A creditor of an embarrased corporation, who for the purpose of getting control of its plant and shielding it from its creditors, collusively obtains the appointment of a receiver, and thereby prevents the owner of the premises on which the plant is located from enforcing his claim for rent, is held, in Link Belt Machinery Co. v. Hughes (Ill.) 59 L. R. A. 673, to be personally liable for the rent accruing during the receivership. A note to this case reviews the other authorities on liability for rent of premises occupied by receiver of assignee for creditors.

An act limiting to eight hours per day the work of laborers, etc., employed on behalf of the state or any of its political subdivisions, and requiring that every contract for public work shall contain a stipulation that no laborer shall be permitted to work more than eight hours under penalty of a forfeiture by the contractor of a certain sum for each day any person shall work more than such time, is held, in Cleveland v.

Clements Bros. Construction Co. (Ohio) 59

L. R. A. 775, to be unconstitutional and void.

In the absence of special circumstances, it is held, in Edminsten v. Herpolsheimer (Neb.) 59 L. R. A. 934, that a check must be presented not later than the day following its receipt, in order to hold the drawer liable, where the payee receives it in the place in which the bank on which it is drawn is located.

station is located is held in Sears v. Boston The purpose for which a union passenger Street Comrs. (Mass.) 62 L. R. A. 144, to be sufficiently public to authorize special asfor the cost of the improvements in streets, sessments upon property thereby benefited

A court of equity sitting in one state is held, in Schmaltz v. York Manufacturing Co. (Pa.) 59 L. R. A. 907, to have jurisdiction of a suit by one of its citizens holding a mortgage on property in another state, to enjoin another citizen from removing from the property alleged fixtures which he has furnished under a conditional contract.

The flowing of land by a dam for manufac turing purposes is held, in Avery v. Vermont Electric Co. (Vt.) 59 L. R. A. 817, to be a taking within the meaning of the constitutional provision regulating the taking of land by right of eminent domain. tensive note to this case collates all the other authorities on liability for damming back water of stream.

A person employed to watch the personal property of a company stored upon the real Ross (N. J. Err. & App.) 59 L. R. A. 943, property of another is held, in Holler v. not to be acting within the line of his duty where he shoots a person trespassing upon the realty, because that person refuses to go off the premises or to halt or throw up his

hands at his command.

A keeper of bees, who locates their hives within a few feet of a post which he has fixed for fastening horses to, when he knows that they are prone to attack perspiring horses, is held, in Parsons v. Manser (Iowa) 62 L. R. A. 132, to be properly found guilty of negligence. The other cases as to liabil ity of owner of bees for injuries done by them are collected in a note to this case.

Pittsburgh Legal Journal “An ordinance regulating the public markets

of Allegheny, Pa." Sec. 5 and 8 of that ordinance, being particularly referred to in the answer, read as follows:

"Section 5. Stalls designated as garden stalls shall be leased to gardeners for the sale of their own produce as far as there is a demand, but surplus stalls may be leased to persons selling at second hand, at an increase of fifty percent over and above

Court of Common Pleas No. 2, the rate fixed in Section 1 of this ordinance.

It seems plain to us a mandamus must be refused for two reasons. (1) The ordinance. provides that no lease shall be sub-let, either in whole or in part, except subject to the approval of the director of the department of public works and the superintendent of markets. The provision in the ordinance Respondents in their answer admit the being valid, action taken thereunder by the facts set up in the petition, and as reasons officers named will not be reviewed except for not approving the transfer, allege an it clearly appears there has been an abuse ordinance of December 20, 1902, entitled of discretion; Commonwealth ex rel. v. Jenks,

hibited the use of machinery. Subsequently B
rented offices on the floor above A, the lease con-
taining the same provision as to machinery. B
operated a tailor shop, and with the consent of
X, operated sewing machines by means of an
electric motor. Held, on bill in equity filed by
A, that for an injunction, that the provision in
B's lease as to machinery did not run for A's
benefit, and the bill should be dismissed.

No. 236 July T., 1903.
Opinion by SHAFER, J.

1904.

Filed March 23,

motor in a room over the office of the complainant, and to restrain the other defendant, W. B. Irish, from suffering or permitting them to do so.

FINDINGS OF FACT.

154 Pa. 368. In this case no such circumstance exists. The ordinance provides that garden stalls shall be leased to gardeners for the sale of their own produce so far as there is a demand for the same, but permits the leasing of surplus stalls to persons selling at second hand. The manifest intention of these provisions is to give gardeners a preference over others, and encourage them to offer their produce for sale at the market house, and whenever there is a demand for stalls from gardeners, it is the duty of the officers named to supply that demand before The bill is for an injunction to restrain making leases to persons desiring to sell at the defendants, Garson and Wilson, from second hand. Here the relator is a second-operating sewing machines and an electric hand vendor and his purchasers, who are not gardeners, propose selling in the same manner. As the answer sets up. a present demand for these stalls by gardeners and a desire upon the part of respondents to comply with the spirit of the ordinance by supplying such demand, they have refused to approve the transfer of relator's leases. A refusal to approve under these circumstances is not, in our opinion, an abuse of the discretion vested in respondents by the ordinance. (2) Aside from the question of the proper exercise of discretion the provisions of the leases themselves stop relator from asking that respondents be required to approve their transfer. Each lease contains the clause against sub-letting and assigning above quoted, which is a part of the contract between the parties under which Second. The defendants, Garson and Wilthe relator holds the stall. He accepted son, are in possession of rooms on the third the leases with that condition attached to floor of the building, under lease dated Janthem, and he has no right now to ask that it uary 28, 1903, from the defendant, Irish, be ignored. Under the very contract, the by which the same was let to them for one assignment of which he asks that respond-year from April 1, 1903, which lease conents be required to approve, it appears he is tains a like agreement that the lessees should not entitled to the relief prayed for. not place any machinery or motive power on the premises or use the same for manufacturing purposes.

And now, January 26, 1904, judgment is
entered for respondents on the demurrer.
For petitioner, O'Brien & Ashley.
For defendant, S. G. Porter.

First. The defendant, William B. Irish, is the owner of a building, Nos. 220 and 222 Sixth street in the city of Pittsburgh, which building is situate in the business portion of the city. By a lease dated October 10, 1902, the defendant, Irish, leased to the complainant, who is a physician, two rooms on the second floor of the building, the lease con taining a covenant that the lessee should not place any machinery or motive power on the premises or use the same for manufacturing purposes, nor otherwise than as a physician's office.

Third. The lower floor of the building in question is occupied by stores, and all the upper floors of the building are leased as offices, or places of business, such as tailor shops and the rooms of a dancing academy and other similar businesses.

Fourth. The defendants, Garson and Wilson, are manufacturing tailors, and have in their rooms over those of the plaintiff an

A leased certain offices from X. The lease pro- electric motor which is connected with and

his landlord and the defendants, Garson and Wilson, no such rule could be applied to him. We are, therefore, of opinion that the fact that the defendant's lease contains a covenant or condition not to manufacture or not to use machinery, cannot be taken advantage of by the complainant.

operates three large sewing machines, the operation of which produces a vibration of the ceiling of the complainant's office and makes a noise which can be heard in the office of the complainant and which interferes, more or less, with conversation and with the examination of patients. After the filing of the bill the defendants, Garson and 2. The only remaining question is whether Wilson, endeavored by placing a wooden or not what the defendants have done by floor under the machines and by other de- way of use of the premises demised to them, vices to deaden the sound of the machines, is considering the situation of the property and their efforts were partially successful, and the nature of the business conducted the noise and vibration being somewhat therein, a nuisance. We are of opinion that diminished, but not completely prevented. | it cannot under all the circumstances be adThe noise and vibration made by these judged to be a nuisance, and that the bill sewing machines is not greater or different must be dismissed. from that which is ordinarily produced by such machines in any situation, and it does not appear that by any device in common use the noise or vibration can be diminished or prevented. The defendants also use in the rooms occupied by them pressing irons operated by hand for the purpose of pressing the clothes, and the noise made by bringing down these irons upon the clothing could be heard in the rooms below.

CONCLUSIONS OF LAW.

As the lease to the complainant was made before that under which Garson and Wilson held the rooms occupied by them, we do not see how the complainant can take advantage of the covenant not to use the machinery contained in the lease made to Garson and Wilson. If the common landlord had leased the premises held by them to Garson and Wilson, with a covenant or condition not to use machinery therein, and had afterwards made a lease to the complainant, it might be that the complainant could take advantage of that covenant or condition upon the theory that the agreement not to use the demised premises in a certain way was for the benefit of the other property of the landlord, and that when the landlord afterwards leased the premises, for the benefit of which the covenant or condition was made, the second lessee took the premises demised to him with the easement or benefit so attached to the premises; and the case of Clark v. Martin, 49 Pa. 289, might be cited in support of such a contention. But as in the present case complainant took his title before any such agreement was made between

Under the circumstances, however, we are of opinion that the defendants should pay a part of the costs.

Let a decree be drawn dismissing the bill, one-half of the costs to be paid by the complainant and one-half by the defendants, Garson and Wilson.

For plaintiff, Lazear & Orr.

For defendants, Langfitt & McIntosh.

Executive Department,

HARRISBURG.

VICTOR COAL COMPANY.

Corporations-Amendment of charter-Extension of time-Extension of territory-Payment of bonus-Act of 1883, P. L. 122.

The Victor Coal Co. was incorporated in 1888 for the term of twenty years for the purpose of mining coal in Clearfield county. Application was made (in 1904) to amend its charter by making the term perpetual and by removing the territorial limitation; the provisions of the corporation amendment act of June 13, 1883, P. L. 122, were invoked. Held, that such extension of time and such extension of territory were not within the meaning of the words, "alter," "improve" or "amend," contained in said act.

Such extension of the term and of the territory
contained in the charter would not be an amend-
ment, but would be, in substance, the creation of
a new term, the creation of a new corporation,
the creation of a contract with the state within
new bounds.

Opinion by CARSON, Att'y-Gen.
February 5, 1904.

Filed