DECISIONS RESPECTING THE INTERNAL have been affixed and canceled in the manner

judicial tribunal, is a judicial officer, his duty being to assist the court under whose commission he acts in administering justice. While employed in such work a notary cannot be regarded as the agent of the person or persons in whose behalf the testimony happens to be taken; but his dutes are of an official nature, and in most respects analogous to those of a referee or an examiner or a master in chancery, whose functions are clearly judicial. Moreover, depositions which are taken before a notary or other inferior magistrate in a pending case are neither private property, since they must be turned into court and lodged with the clerk, there to remain permanently as a part of the proceedings in the cause.

HEROISM AND THE LAW.

In a case recently decided by the Supreme Court of Pennsylvania the question at issue was whether a person who voluntarily risks his life in the attempt to save another from death or sudden danger is not guilty of contributory negligence, and therefore barred from recovering damages. From the facts of the case it appeared that the authorities of Philadelphia digged trenches in a street in the attempt to locate an old sewer. After excavating to the depth of twenty-five feet the work was abandoned because of the strong gas at the bottom of the excavation. A boy lost his ball in the trench, climbed down after it and was over- · come by the gas. Another boy descended to the rescue of his comrade, was also overcome by the gas, and lost his life. Suit was brought against the city on the ground that the trenches were not protected, nor was proper warning of danger given. On the trial in the District Court the judge took the case from the jury and directed a verdict for the city. The case was then appealed to the Supreme Court. The case for the city, in brief, was that the boy had vol untarily incurred the danger, and that it was no excuse for his negligence that it was to save the life of another. In pronouncing the opinion of the majority of the court, Judge BRowN said:

"We are of opinion, therefore, that the cer tificate of a notary, under his hand and seal, authenticating his offical acts while serving in the capacity aforesaid, does not fall within the provisions of the recent internal revenue act, but that such a certificate is exempt from taxation for the reason that while so engaged a notary is performing public duties devolved upon him which by law, which are intimately connected with the administration of justice. The same conclusion was reached with respect to such certificates under the internal-revenue Act of June 30, 1864. Schedule B of that act (13 Stat., 223, 299, ch. 173), after enumerating several kinds of certificates which internalrevenue stamps should be affixed, further provided in general terms that an internal-revenue stamp of 5 cents should be affixed to a 'certificate of any other description than those specified.' It was held, however, that the gen-structions from the court. While one who rashly and

eral language employed in that act did not require a revenue stamp to be affixed to a notarial certificate authenticating depositions, because they were legal documents and constituted a part of a legal proceeding: Prather v. Pritchard, 28 Ind. 65, 70. See, also, Cardell v. Bridge, 9 Allen, 355, 357."

Express companies-Sale or money order and

travellers' check.

Brokerage is not the business of the express companies; they are carriers, and the issuing of money order and travellers' checks is a mere incident to the business of carriers, the companies for a consideration issuing their own orders upon themselves for the payment of money, upon presentation to their authorized agents. They are not liable on this account for special tax as brokers under the second paragraph of section 2, Act of June 13, 1898: 3 Treas. Dec. 31. No. 128, May 15, 1900.

It is not negligence, per se, for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger. The question whether one so acting should be charged with contributory negligence is one of mixed law and fact, and should be submitted to the jury upon the evidence, with proper in

unnecessarily exposes himself to danger cannot recover damages for injuries thus brought on himself, yet, where another is in great and imminent danger, he who attempts a rescue may be warranted by surrounding circumstances in exposing his limbs or life to a very high degree of danger. In such case he should not be charged with the consequences of errors of judgment

resulting from the excitement and confusion of the moment, and if he did not act rashly and unnecessarily expose himself to danger, and is injured, the injury should be attributed to the party that negligently or wrongfully exposed to danger the person who required assistance.

The court reversed the judgment of the lower court and ordered a new trial, but it was by a bare majority, four judges agreeing to reverse the original judgment and three to sustain it. The dissenting opinion held that the boy was not excused from negligence by "the goodness or humanity of his motives," and in all the precedents and argument cited in support of the majority decision the minority could "find nothing beyond an emotional basis of admiration for heroism, very creditable to human nature, but having no proper place in the administration of justice."-The Albany Law Journal.

Pittsburgh Legal Journal

ESTABLISHED 1853.

EDWARD B. VAILL, Editors.
THOMAS EWING, Jr.,)

N.S., Vol. XXX.

O. S., Vol. XLVII. }

PITTSBURGH, PA., JULY 4, 1900.

its employees for alleged violations of said ordinance, and to have defined the duty of the petitioner as to the laying, relaying, repairing, etc., of pipes in the streets and highways of said borough.

The petitioner is a corporation organized No.50. under the Act of Assembly of the Commonwealth of Pennsylvania, entitled "An Act to provide for the incorporation and regulation of natural gas companies," approved May 29, 1885. The borough of Sewickley is, and for many years has been, a municipal corporation of said Commonwealth, created under its general borough law, and located in the county of

Court of Common Pleas No. 3,

ALLEGHENY COUNTY.

FORT PITT GAS COMPANY v. THE BOR- Allegheny. The petitioner is possessed of the

OUGH OF SEWICKLEY.

Borough ordinances as to streets-Rights of gas companies-Supervisory powers of court-Act of May 29, 1885, sec. 12, P. L. 29.

A borough ordinance relating to streets provided that no excavation should be made without a permit from the engineer, and required a deposit of ten dollars, three dollars to be retained after it had been filled in, for the use of the borough, and five dollars if the street

was paved with asphalt, and that no excavation should remain open more than twenty-four hours. The plaintiff, a gas company with right of eminent domain, filed a petition under section 12 of the Act of May 29, 1885, to have the ordinance declared unreasonable and null and void as to it. Held,That the court had supervisory power under the act above mentioned.

right of eminent domain, and has the assent of said borough to enter upon its streets and highways to lay down its pipes and to alter and repair the same for the purpose of supplying natural gas to consumers thereof in said borough, in which business it is now and has for a number of years last past been engaged, subject to such reasonable regulations as the councils of said borough may adopt, and subject also to the supervisons, power and control of the courts, as provided in the said Act of Assembly under which the said company is incorporated. The twelfth section of said Act of Assembly provides that "In all cases when any dispute shall arise between any such corporations and the authorities of any borough, city, township or county through, over or upon whose highways, or between it and any land-owner or corporation, through, over or upon whose property or easement pipes are to be laid, as to the manner of laying the pipes and the character thereof, with respect to the safety and public convenience, it shall be the duty of the Court of Common Pleas of the proper county, upon the petistances might be required for more than twenty-four tion of either party to the dispute upon hearing to be had, to define by its decree what precautions if any shall be taken in the laying of pipes, and by injunction to restrain their being laid in any other way than as decreed. It shall be the duty of the court to have the hearing and make its decree with all convenient speed

That the ordinance was unreasonable in the amount

required as a deposit. The amount should not exceed

one dollar for unpaved streets and four dollars for paved streets and the sum retained should not exceed fifty cents for unpaved streets and two dollars for paved streets.

The ordinance should receive a reasonable construction. The officer issuing permits should be easily accessible and in cases of emergency no permit should be required, and that excavations under certain circum

hours.

No. 362 May T., 1900. Petition under section 12 of Act of May 29, 1885, to have an ordinance of the borough of Sewickley declared unreasonble and void as to petitioner.

Opinion by KENNEDY, P. J. Filed June 16, and promptness. Either party shall have the

1900.

The object of this application is to have declared null and void, as to the petitioner, a certain ordinance of said borough of Sewickley, No. 269, approved January 28, 1900, entitled "An ordinance regulating the digging up of streets for the purpose of laying pipes to houses and buildings from water, gas or sewer mains, or for any purpose whatever in the borough of Sewickley," and to have the said borough restrained from prosecuting the petitioner and

right to appeal therefrom as in equity, to the Supreme Court, but the appeal shall not be a supersedeas of the decree, and proceedings shall be had in like manner upon a like petition when and as often as any dispute arises as to pipes already laid, to define the duties of such corporations as to their relaying, repair, amendment or improvement."

The ordinance of the borough councils of the borough of Sewickley, which is the subject of complaint in this proceeding, is as follows, viz.:

"No. 269. AN ORDINANCE

lating any provision of the ordinance shall be punished by a fine not exceeding fifty dollars. "SECTION NO. 6. That any ordinance or part of ordinance conflicting with the provisions of this ordinance be, and the same is hereby re

pealed, so far as the same affects this ordinance. "Ordained and enacted into a law in council

"Attest:

"CHARLES F. NEVIN,
"President.

"J. A. KNOX, Clerk of Council.
"Examined and approved this 28th day of
January, A. D. 1900. H. J. MURDOCH,
"Burgess."

This ordinance the petitioner claims to be unreasonable and null and void as against it. And a dispute has arisen between the petitioner, the Fort Pitt Gas Company, and the respondent, the borough of Sewickley, in regard to the time, manner and other conditions of mak

"Regulating the digging up of streets for the purpose of laying pipes to houses and buildings from water, gas or sewer mains, or for any purpose whatever, in the borough of Sewickley. "SECTION NO. 1. Be it ordained and enacted this 11th day of January, A. D. 1900. by the town council of the borough of Sewickley, in council assembled, and it is hereby ordained and enacted by authority of the same, that it shall not be lawful for any person or persons to dig up or excavate any street, or any portion thereof, for the purpose of connecting any pipe with any water, gas or sewer main, or for any purpose whatsoever, without first applying to the borough engineer for a permit. "SECTION NO. 2. That upon due and proper application being made to the borough engineer by any person or persons for the permit, as mentioned in section first, he shall upon a depositing repairs, etc., to the pipes of the petitioner being made with the said borough engineer of laid in or upon the streets and highways of the ten dollars for any excavation not exceeding said respondent. fifty lineal feet, or fraction thereof, and a like sum for each additional fifty feet, or fraction thereof, intended to be opened, dug or excavated, issue such permit which will specify when said work is to be completed, and the said engineer shall retain the amount so deposited until the person or persons applying for such permit have done the work of filling in, leveling and grading of said street so excavated or dug up. When said filling and level ing is completed to the satisfaction of said engineer, he shall return the amount so deposited to the person to whom such permit was granted, less the sum of three dollars for every fifty feet excavated, or fraction thereof, which the said engineer shall forthwith turn over to the treasurer of the borough to be used for general street

purposes.

"SECTION NO. 3. That the forgegoing section will relate to all streets and avenues, whether paved or unpaved, excepting that for every permit for digging or making an excavation in any street paved with asphaltum, brick or macadam, the engineer shall retain from the deposit of the applicant the sum of five dollars for the amount of pavement disturbed, not exceeding ten square yards, and if it shall exceed ten square yards, the sum of fifty cents per square yard.

We are of opinion that this court has supervisory power and control over the matters in dispute thus arisen, and after consideration of the testimony are convinced that the ordinance in question is unreasonable as against the petitioner, in that the amount of money required to be deposited with the borough before any permit can be issued by him to petitioner to make excavations in said streets and highways is excessive, and it is also unreasonable as against the petitioner in that the sum of money to be retained by the said borough engineer, in case of excavations in said streets and highways after the same has been filled in, is excessive.

We are of opinion that the amount of the deposit required to be made by the petitioner, before any permit is issued to make the excavations aforesaid, should not in the case of unpaved streets and highways exceed the sum of one dollar, and in the case of paved streets should not exceed the sum of four dollars. And that the sum of money to be retained by the borough out of said deposit, after the excavations have been filled in, should not in the case of unpaved streets and highways exceed the sum of fifty cents for each excavation, and in the case of paved streets should not exceed the sum of two dollars for each excavation.

While we do not consider the ordinance un"SECTION No. 4. That no excavation shall reasonable in other respects, its provisions must remain open more than twenty-four hours and receive reasonable construction. There should must be properly guarded and marked with be an officer of the borough accessible at all red lanterns at night, and not more than fifty times authorized to issue permits to make exfeet shall be opened at one time. cavations, and in cases of emergency, where "SECTION NO. 5. Any person or persons vio- great danger and threatened injury can only

be averted by immediate action on the part of the petitioner, it should not be required to submit to delay in procuring such permit, but should be allowed to excavate at once. And so also as to the provision requiring excavations to be filled within twenty-four hours after they are made; there may be cases where this is impossible, in such cases proper allowance should be made the petitioner; in other words this provision should receive a reasonable construction.

In such case as the present, the declaration should state fully the facts out of which the liability to Robertson arose; and in this respect the present declaration is perhaps somewhat defective. It is, however, stated in the narr., in a general way, and upon the argument of the demurrer it was conceded by counsel for both parties that the averments of the declaration meant that the plaintiff company, whilst in other respects using due care in mining under Robertson's land, did not support the surface

Let a decree be drawn in accordance here- either by leaving sufficient coal or putting in with.

other supports, and that Robertson recovered For petition, Thomas Patterson and Edwin damages for the consequent sinking. S. Craig. We thus have presented upon the demurrer For borough of Sewickley, Charles A. Woods, the question, whether, under the lease as set borough solicitor. forth in the narr., Hopkins is bound to reimburse the coal company damages recovered

YOUGHIOGHENY RIVER COAL COMPANY from it by a third party, whose surface has

v. HOPKINS.

Coal lease-Construction.

been injured by the taking out of coal to such extent as to cause it to fall.

The action is covenant on the lease, and hence we need not trouble ourselves about rep

Ordinary precautions in mining-Support of resentations alleged to have been made by

surface.

A. leased a tract of coal to B. with mining rights and waiving all damages arising from mining operations, provided B. took all ordinary precautions usual in

mining coal. B. in mining did not leave support for

the surface and a surface owner recovered damages

from B. for injury to the surface. B. brought assumpsit to recover these damages from A. under the lease. Held, that as B. had not taken the ordinary precautions usual in mining operations he could not recover. It is the well settled law of Pennsylvania that an ordinary precaution in mining is the support of the surface, and a custom to the contrary cannot be shown.

Hopkins as to the extent of the mining rights and privileges which he possessed.

If he did not bind himself to convey to plaintiff the right to take out all the coal without liability for injury to the surface, then it matters not what his representations were as to his possession of such rights. On the other hand, if he did so bind himself, then he must respond, whatever his rights and whether or not he made representations.

Hopkins leased and demised to plaintiff "all the coal or veins or strata of bituminous and

No. 627 May T., 1897. Assumpsit. Demurrer other coal lying and being under the surface of

to narr.

Opinion by MCCLUNG, J. Filed June 20, 1900.

In 1880 the defendant leased to plaintiff certain coal underlying lands in Allegheny and Westmoreland counties, with mining privileges.

The lease contains a covenant that the lessor is seized of the premises demised, and has the right to convey them, and that the lessor shall enjoy free and peaceable possession.

that certain tract of land," containing 1042 acres, described by reference to deeds to Hopkins; "and together with said coal and appurtenant thereto, is hereby granted and conveyed the free and uninterrupted right of way under and through the said tract above described, at, to and from such point or points and in such manner as may be necessary, proper or convenient for the purpose of digging, mining and transporting or carrying away any and all of

The lessee entered upon the premises and the said veins or strata of coal hereby demised, proceeded to mine the coal. together with all mining rights, privileges and In 1893 one Robertson, the owner of a portion easements necessary or useful for the convenof the overlying surface, brought suit against | ient draining, ventilating and operating openthe lessee for injury to the surface in the pro-ings into the said veins and otherwise, some of cess of mining, and recovered damages. This suit is brought upon the covenants of the lease, plaintiff contending that the lessor is legally bound to reimburse the damages thus recovered and the expense of defending the Robertson suit.

which privileges are the making and using of openings or air holes and drains, shafts and drifts in the surface, and the making of surveys for the underground entries or tunnels and the like. "And all damages direct or consequential and claims therefor resulting from the mining