within one year from the 3rd day of December, 1890, or in default thereof pay to the lessor $130 per annum in quarterly instalments until such well is completed.

Second.-That Thomas Liggett on the 19th day of May, 1891, duly assigned and transferred the oil and gas lease on plaintiff's farm to John M. Patterson, who subsequently assigned the same to the Forest Oil Company, the defendant herein, which company still holds the lease.

Third.-That under the said lease five wells have been drilled on plaintiff's farm, wells known as Nos. 1 and 2, located near the northern line; each produced gas for a time, but are now and have been for some time abandoned; that wells Nos. 3, 4 and 5 were drilled along the southern part of the farm, No. 4 being in the extreme southeastern corner, 135 feet from Caldwell's line; and No. 5 about―feet west of No. 4 and 25 feet from Cladwell's line; and No. 3 about half way between Nos. 4 and 5 and 210 feet from Cladwell's line; these three wells have been producing oil since their completion. Nos. 3 and 4 always being small producers, while No. 5 started off at from 25 to 28 barrels per day, but fell off to such an extent that it was producing but 8 barrels per day at the end of six months. The three wells together are now producing about 34 barrels per day.

west of plaintiff's well No. 5. On the north of plaintiff's farm there are two oil-producing wells, one on the Aronson farm located 285 feet from plaintiff's line and the other on the Morris farm located 355 feet from plaintiff's line; the production of these wells was not disclosed by the testimony. There are also two abandoned gas wells on the northern pórtion of plaintiff's farm, both of which are nearer to plaintiff's east than west line, and there is also an abandoned gas well on the Aronson farm 115 feet north of plaintiff's line.

Fifth. The defendant company has refused to drill any additional wells on plaintiff's land, alleging that the probabilities of getting a paying well would not justify the costs of its putting down, viz.; about $4500, and called witnesses who testified to that effect. It is also contended by the defendant that the wells already drilled upon plaintiff's farm are amply sufficient to bring to the surface the oil still remaining thereunder.

Sixth.-That the nature of the rock from which the oil is produced determines the extent of the area which a well will drain. A well producing from coarse and loose sand will drain for a greater distance than one producing from a hard and compact rock.

Seventh. That the oil-producing rock or sand Fourth. The defendant's farm contains 60 underlying the Colgan and adjoining farms is acres of land, is bounded on the north by lands | of a loose nature, and wells producing from that of John Singhose and S. Aronson; on the south sand will drain for a distance of about five by Washington Caldwell, on the east by Alle-hundred feet. gheny Valley Railroad, and on the west by lands of Uriah Ryan; that the defendant holds oil and gas leases on the lands adjoining defendant on the north, south and west, and that these adjoining lands have been drilled upon by defendant with the following results: On the Ryan Farm well No. 1, located 535 feet from the south-west corner of plaintiff's line, always a small producer of oil, now producing between two and three barrels daily; No. 2 located 200 feet west of plaintiff's line and near the north west corner of his farm; this well came in dry and has never produced either oil or gas. And Nos. 3, 4 and 5, located repectively 975 feet, 750 feet and 1640 feet from plaintiff's southwest corner, all small producers at first and now abandoned. On the Caldwell farm well No. 1 is located 480 feet south of plaintiff's line, is now producing one barrel per day; No. 2 is located 768 feet from plaintiff's south line and is between well No. 1 and Ryan's line and is now producing three to five barrels per day; and No. 4 is located 77 feet from the south line of Ninth. That about 30 acres of plaintiff's farm plaintiff's land and is new producing 15 or 16 being the western half thereof, has not been barrels per day. This well is 400 feet south-tested for oil and gas purposes, that plaintiff is

Eighth. That well No. 5 on the plaintiff's farm was completed and began producing oil in the month of November, 1895, at first its daily production being between 25 and 28 barrels, which production continued although slightly diminished until February, 1896, when well No. 4 on the Cladwell farm was completed and began producing oil at the rate of 25 barrels per day, whereupon the production of Colgan No. 5 decreased to 8 barrels per day, and has since continued to fall off until its daily production is now less than one barrel per day, while the production of Caldwell No. 4 continues at 15 barrels per day. Taking into consideration the nature and quality of the oil-producing sand in that neighborhood, the distance between these two wells, their location and the fact that the production of Colgan No. 5 fell off immediately upon the completion of Cladwell No. 4, we find that Cladwell No. 4 is drawing oil from sand underlying plaintiff's farm from which oil was previously drawn by Colgan No. 5.

anxious to have the same tested and will either drill himself or lease to some person who will it permitted to do so.

CONCLUSIONS OF LAW.

of way and other rights incident thereto under the terms of said lease necessary to the operation of said wells.

Third. That the costs of these proceedings be paid by defendant.

For plaintiff, J. K. P. Duff.
For defendant, R. W. Cummins.

Court of Common Pleas No. 3,

ALLEGHENY COUNTY.

COOK & FAIR v. HERRING, Owner, and
CROOKS, Contractor.

Estoppel thereby.

First.-Under the terms of the lease in this case the defendant has the sole and exclusive right to drill for oil and gas on the plaintiff's farm, and while there is no express clause in the lease requiring that more than one well be drilled, it is now the settled law of the State that the lessee shall drill without unnecessary delay upon the leased premises as many wells "as may be reasonably necessary to secure the oil for the common advantage of both lessor and lessee." This the defendant was bound to do Mechanic's lien-Receipt from a material-man— in this case. Whatever number of wells were reasonably necessary to develope and test the plaintiff's farm, it was bound to drill, and in determining the number and location of the wells, it was bound to take into consideration the wells drilled on the adjoining farms, their production and the nature and quality of the sand from which the oil is drawn; whatever care and prudence would dictate should be done not only to prevent plaintiff's oil from being brought to the surface through wells upon his neighbor's land, but to produce it upon his own land without unreasonable delay, it was defendant's duty to do. In this case the farm contains 60 acres; thereon have been drilled five wells, all with the exception of No. 5 being | ham.

Where a material-man gives to a contractor a receipt for money paid for material for a certain house, taking therefor the check of the contractor which proves worthless, and the contractor by showing the receipt obtains money from the owner on account of the work, the material-man is estopped from entering his mechanic's lien against the property for the amount paid by the owner on faith of the receipt.

No. 18 May T., 1898. Scire facias sur mechanics' lien.

The jury found in favor of plaintiff for the sum of $22.84.

Motion for a new trial on part of plaintiff.
For plaintiffs, J. M. Stoner and J. D. Jack.
For defendant, Chantler, McGill & Cunning-

on the east half, the west half being entirely Opinion by MCCLUNG, J. Filed May 6, 1899.

untested. There are producing wells on property adjoining it on the north, there are a number of producing wells, or wells that have produced oil until recently on its south and west; the wells to the north of plaintiff's farm and those on the south are about on a forty-five degree line, and the sand from which the oil is produced is fairly loose and porous; these conditions we find show with a reasonable degree of certainty that the eastern half of plaintiff's farm would furnish at least one paying well.

Second.-That the defendant shall within twenty days after notice of decree, in accordance with these findings, stipulate in writing, to be filed in this case, that it will put down a well on the eastern portion of plaintiff's farm and begin the same within twenty days thereafter, and prosecute the same to completion with all reasonable diligence and in good faith. In default of such stipulation, or a compliance therewith, the defendant shall be deemed to have abandoned its said leasehold estate in said land, except as to wells known as Colgan Nos. 3, 4 and 5 and a space of five hundred feet around said wells on all sides, together with the rights

This is a scire fucias sur mechanics' lien. Defendant Herring employed Crooks to build a house. The plaintiffs were material men. At a certain stage of the proceedings Crooks applied to Herring for $200 on account. Herring declined to pay the money without a release of liens from plaintiffs, or evidence that payments had been made on the material furnished by them to such extent as to make him safe in so doing. Crooks then went to plaintiffs, and in a short time returned with their receipt showing the payment that day of $200 on account of "material furnished to the Herring house." Herring thereupon paid the $200 to Crooks.

It turned out that Crooks had obtained the receipt, not by paying cash, but by giving a check, dated the next day, and that this check when sent through the clearing house came back dishonored. Plaintiffs, upon the receipt of the check, notified Herring that the receipt had been given for a check which was not paid.

Crooks shortly afterwards failed. Plaintiffs filed their mechanic's lien, and on the sci. fa.

Herring defended as to the $200 receipted for and paid as described.

No. 137 Sept. T., 1898. Sur rule for judgment for want of sufficient affidavit of defense. Opinion by THOMAS, P. J.

We think it very clear that the defendant, Margaret L. Porter, might legally mortgage her individual real estate for the purpose of securing a fund with which to pay her husband's debts, but there is much more in the affidavit of defense than this. Defendant alleges that said mortgage was given for the payment of certain obligations of her husband, and that the proceeds thereof were to be applied in payment of certain of these obligations, to wit: one judg

It appeared on the trial that when notice of the dishonor of the check was given to Herring, he (Herring) yet had in his hands a small amount coming to Crooks beyond what was necessary to clear the building of liens, and plaintiffs recovered for this amount, but the $200 receipt was held to be conclusive as against them, in so far as it operated in causing Herring to pay out money to Crooks which was necessary to protect him against plaintiffs' lien. The receipt, as has been stated, showed on its face that it was given for material furnished to|ment given by the defendant, Margaret L. the Herring house.

Porter, to T. D. Bentley, also, for a debt due to Paul Sturtevant & Co., for which she and her husband had given a note, and also, that the balance of said consideration was to be applied in payment of a certain account held by I. S. Krick against her husbaud, Homer C. Porter. Defendant alleges that none of these obligations for which said mortgage was given have been

The uncontradicted and unimpeached testimony in the case showed that it was used for the purpose of obtaining money from Herring, which Crooks could not otherwise have gotten. Besides, plaintiffs' notice to Herring, when he found that the check was not made good, was a recognition of the fact that such was the natural and obvious use of such a receipt. Not-paid by the mortgagee, and as a matter of fact, withstanding this, it is argued that there is no estoppel as against plaintiffs because Crooks was Herring's agent.

the present use-plaintiff had full knowledge and notice thereof.

While the wife could certainly mortgage her It is not improper to speak of the contractor real estate for the purpose of paying her husas the owner's agent, when we are talking of band's debts, it certainly will not be contended his authority to subject the building to a meby the plaintiff that there was not a failure of chanic's lien; but when dealing with the rela consideration if the mortgage was given in contions involved in the present case, the idea of sideration that these debts be paid by the mortsuch agency must be wholly excluded. gagee, and the mortgagee failed to pay the same. Plaintiffs were creditors of Crooks, and Her-In fact, the affidavit of defense sets up a case ring, representing the building,-was Crooks' surety, holding collateral-viz. the contract price-to protect him. Plaintiffs certified by their receipt that a certain portion of the debt had been paid, and thus enabled the principal debtor to lift a portion of the collateral. They are now estopped to say that what they certified to be a judment turned out not to be one. The principle laid down in the case of Atkins et al., Receivers, v. Payne & Co., 190 Pa. 5, applies with full force to, and controls this case. The motion for a new trial is refused.

Court of Common Pleas,

CRAWFORD COUNTY.

STURTEVANT v. PORTER.

Mortgage of married woman—When liable for husband's debts.

A woman may mortgage her real estate to pay her hus band's debts, but where the mortgagee has covenanted in the mortgage to pay such debts she cannot be held liable.

wherein the wife gave a mortgage upon which neither she nor any other person ever realized any consideration, and if this be true, it certainly is a good defense.

The rule is, therefore, discharged.

Court of Common Pleas,

JEFFERSON COUNTY.

RUPERT v. RITTENHOUSE.

Assumpsit-Jurisdiction of justice of the peace-Costs when suit is brought in Common Pleas. Plaintiff, who was engaged in the mercantile business, leased another building on the same premises to the defendant, the lease containing the provision that defendant was not to conduct a grocery store on said premises. Plaintift brought assumpsit in the Common Pleas to recover for violation of the lease and recovered a verdict of six and one-fourth cents. Defendant took a rule to show cause why judgment should not be entered in favor of the plaintiff without costs. Held, that the cause of action was one arising ex contractu and was cognizable by a justice of the peace by the first section of the Act of March 20, 1810, 5 Sm. Laws, 161, and the plaintiff not having filed an affidavit that he truly be

Opinion by REED, P. J. Filed March 15, 1899. The plaintiff brought his action of assumpsit in this court to recover damages for breach of contract, and on the trial of the cause recovered | a verdict for six and one-fourth cents. He was engaged in the mercantile business, and being the owner of another building on the same premises leased it to the defendant for a postoffice and dwelling. The lease contained a stipulation that the defendant was not to conduct a grocery store on said premises or in said building, "or to keep in stock and sell at retail any kind of goods without consent of first party." The issue joined and tried between the parties was the alleged violation of this stipulation in the lease, with the result above stated. The plaintiff having failed to make and file in the suit an affidavit that the debt due or damages sustained exceeded $100, the defendant has taken this rule on him to show why judgment should not be entered on the verdict without costs.

Upon the facts stated, our question is whether this action was cognizable before a justice of the peace. If it was, then this rule must be made absolute and judgment directed to be entered in favor of the plaintiff without costs. By the first section of the Act of March 20, 1810, 5 Sm. Laws, 161, justices of the peace are given jurisdiction "of all causes of action arising from contract, either express or implied," where the sum demanded is not above $100, except in certain cases which do not now concern us. Section 26 of the same act provides that if any person shall commence suit, in any other manner than is directed by said act, for any debt or demand, made cognizable as aforesaid, without having caused to be made and filed an affidavit that he truly believes the debt due or damages sustained exceed the sum of $100, he shall not recover costs in such suit. The words "arising from contract, either express or implied," embrace those causes of action arising immediately out of a course of dealing between the parties: Zeigler v. Gram, 13 S. & R. 102; Conn v. Stumm, 31 Pa. 14. But not those causes of action, sounding in tort, arising from neglect of duty: Hill v. Tionesta Township, 129 Pa. 525. Nor of actions for consequential damages, though de ducible from the existence of a contract: Zell v. Arnold, 2 P. & W. 292. In such cases it may be said that the defendant's liability arises remotely out of a contract, and that an action of

assumpsit might be maintained upon the implied contract involved: McCall v. Forsyth, 4 W. & S. 179; Pittsburgh City v. Grier, 22 Pa. 55. But the jurisdiction of the justice is not determined by the form of action adopted, and the | word "contract," as used in the Act of 1810, has been judicially defined to mean a bargain or agreement arising immediately out of a course of dealing between the parties, and not those indirect or implied obligations, the non-observance of which amounts to a tort: Seitzinger v. Steinberger, 12 Pa. 379.

The present action arises out of an express contract between the parties, and the damages sought to be recovered were those directly resulting from its breach on the part of the defendant. This is not a case of misfeasance giving rise to an action ex delicto. The failure of the defendant to keep his contract amounts to no more than a nonfeasance, that is, the non-performance of a duty, and, as was said in McCahan v. Hirst, 7 Watts, 175, "whenever such duty arises, as it does here, out of a contract, the non-performance of it becomes, and in reality is, nothing more or less than a nonperformance or breach of the contract imposing the duty. Hence the contract is the real foundation of the cause of action, which must be considered as arising immediately from the breach of it." The fact that the damages claimed are unliquidated, or may be difficult of ascertainment, will not oust the justice's jurisdiction: Sneively v. Weidman, 1 S. & R. 417. We think it is clear this case was cognizable before a justice of the peace, and the plaintiff, having neglected to make and file the statutory affidavit, he is not entitled to recover costs.

And now, March 15, 1899, rule made absolute, and judgment directed to be entered without costs.

For rule, M. M. Davis.
Contra, A. J. Truitt.

Orphans' Court,

ALLEGHENY COUNTY.

Estate of AMANDA PATTERSON, Deceased.

Register-Pobate of will-Costs.

Where a register by decree made April 10, 1896, refused probate of a writing, but did not find the amount of Held, that the inference was either that no costs were costs nor direct by whom they were to be paid: incurred or that they should be paid by the parties incurring them, and that the register's decree was conclusive, no appeal being taken within three years.

No.

June T., 1899. Sur appeal from decision of the register.

James H. Patterson, who was appointed executor and made residuary legatee and devisee in an alleged will of Amanda Patterson, deceased, offered the same for probate, to which a caveat was filed by James H. Patterson, the appellant. After hearing, the register entered the follow-register would have the power to make such a ing decree: disposition of them as he saw proper.