liable as a copartner in the business, at least to the extent of the money loaned. The assignments of error are not sustained. Judgment affirmed. STRAWICK v. MUNHALL. To obtain a lien under the Act 17th June, 1887, P. L., 409, relating to liens of mechanics, laborers and others upon leasehold estates and property thereon, the notice required by the act to be given by one not a contractor for the work, of intention to file a lien, must be given before the work is done. The notice is the foundation of the lien. Appeal of William Munhall, defendant, from the judgment of the Court of Common Pleas No. 1, of Allegheny county. The facts are fully stated in the opinion, infra. There was a verdict and judgment thereon for plaintiff for $402.59. Motion for new trial refused by STOWE, P. J. The only specification of error was, "That upon all the testimony in this case plaintiff is not entitled to recover." For appellant, W. F. McCook, Esq. it is sufficient. The statute is somewhat obscure on this point and is, perhaps, susceptible of an interpretation in harmony with either claim. It is carelessly and inartificially drawn. It puts the material-men and the workmen on the same plane as to notice, but it gives no lien for materials. It is clear, however, that the notice is indispensable to a lien, and that it is intended for the protection of the owner of the leasehold. It should be given, therefore, so that it will accomplish its purpose. A notice to the owner, after the completion of the work and the payment of the contract price for it, would be of no benefit to him. He has the right to know as the work progresses, for what labor his property is to be held liable. If the workmen give notice of their intention to file liens for it, he is in a position to protect them and himself in his settlement with the contractor. It is apparent that the notice clause was inserted in the statute with this object in view, and a construction which defeats it should be avoided unless required by the plain and unambiguous language of the act. There is no hardship in exacting from the workmen notice of their intention to file liens for their labor when they enter upon the work in the service of the contractor. The Opinion by MCCOLLUM, J. Filed January 5, statute has given them a lien on the property of 1891. The appellant leased the Showerman farm, or a portion of it, for oil and gas purposes. Gallagher agreed with him to drill a well upon it, to be paid for when completed. Leech was then substituted for Gallagher in the agreement. The well was abandoned by the contractor who took away the machinery used in drilling it. It is not finished, and it is probable that it cannot be because the drilling tools are fast in it and the contractor and his workmen were not able to remove them. It is an incomplete and abandoned well. Strawick, the appellee, was employed by Leech to work upon it and claims a lien for his labor under the provisions of the Act of June 17, 1887, relating to liens on personal property and leaseholds: P. L., 409. He filed his claim for a lien on the 24th of October, 1889, "for ninetytwo days of labor as a driller" "from July 8th to October 24, 1889, inclusive." It is alleged by the appellant that the appellee acquired no lien by virtue of his claim so filed, because he did not give notice of an intention to file a lien for it until the work was done, and the well was abandoned. There is no dispute as to the time the notice was given, but there is disagreement as to the requirement of the statute in regard to it. The appellant contends that the notice must precede the work, and the appellee insists that if given at any time before filing the claim the owner, on terms which are reasonable and just, and compliance with these is essential to its creation and continuance. The statute does not create a lien which is destoyed by a failure to give the notice within thirty days after the work is performed, but it makes the notice the foundation of the lien. We think the provision as to notice in the act under consideration is substantially the same as in the Act of May 18, 1887, relating to liens for repairs: P. L., 118. The word "when" in the former is the equivalent of the words "at the time" in the latter. We are of opinion that after the work is done a notice of an intention to file a lien comes too late. As this view is fatal to the appellee's claim, the other questions raised by the specifications of error require no discussion. The judgment is reversed. SUPREME COURT OF PENNSYLVANIA. Sitting in the Eastern District. The following order was entered at Philadel phia, on Monday, January 19, 1891: BY PAXSON, C. J.: In re Application of James Edward Myers to be admitted to bail pending appeal. O. & T. of Allegheny county. The application for a hearing upon this motion is denied with leave, however, to renew the motion when we are furnished with a copy of the record, bill of excep‐ ions and assignments of error. Pittsburgh Legal Journal. ESTABLISHED 1853. E. Y. BRECK, N. S., Vol. XXI. 0. S., Vol. XXXVIII.} : : : Editor. No. 26. PITTSBURGH, PA., JANUARY 28, 1891. Supreme Court, Penn’a. case. The Act of 1705, 1 Sm. L., 70, expressly provides that no swine shall be permitted to run at large, without rings and yokes, under the penalty of forfeiting half the value thereof. * * * Therefore, if any person or persons shall find on his, her or their lands, any swine, hog or hogs, shoat or shoats, or pigs, without rings in their noses, sufficient to prevent their turning up the ground, and triangular or three-cornered yokes or bows about their necks, and to extend at least six inches from the angular point or corner, sufficient to keep them from breaking through fences, it shall and may be lawful for him, her or them, all such swine, hogs, shoats or pigs, to kill and take, and drive and carry away, etc., etc. We need not recite further the provisions of this act. It was not alleged that the defendant's hogs had either rings in their noses, or yokes on their necks, as required by the Act of Action to recover damages for the trespass of 1705. It was alleged, however, that the Act of swine, which was suffered to run at large with-27th of March, 1784, 2 Sm. L., 96, entitled "An out rings or yokes. STEWART v. BENNINGER. The Act of 27th March, 1705, 1 Sm. L., 70, Purd., 1578, relating to the running at large of swine, is still in force in Pennsylvania. Appeal of Jacob Benninger, defendant, from the judgment of the Court of Common Pleas of Clarion county. Act to regulate fences, and to appoint appraisers in each township in the counties of Bedford, Opinion by PAXSON, C. J. Filed January 5, Northumberland, Westmoreland, Washington 1891. According to the statement of the plaintiff the defendant kept a very voracious set of hogs. They were suffered to run at large without rings | or yokes. "They were of the slab-sided, longsnooted breed against whose daily and nocturnal visits there is no barrier. They were of an exceedingly rapacious nature, and six of them, at one sitting, devoured 50 pounds of paint, 30 gallons of soft-soap, 4 bushels of apples and 5 bushels of potatoes, the property of the plaintiff. They raided the plaintiff's spring-house, upset his milk-crocks and wallowed in his spring, and for several years foraged upon his farm, having resort to his corn, potatoes, rye and oats crops, to his garden and to his orchard and meadow. They obtained an entrance by rooting out his fence chunks and going under, or by throwing down the fences, or by working the combination on the gate. These hogs were breachy, and the plaintiff notified the defendant, several times, to shut them up, and the last time told him if he did not shut them up he would; and the defendant replied 'Shut them up and be dd.'" It may be this statement is exaggerated, yet the jury have found that they were troublesome hogs, and were without rings and yokes. That they did the plaintiff some damage is not disputed, but the defendant contends that the plaintiff was not entitled to recover anything for such damage for the reason that he did not put up proper fences. We are unable to see what the question of fences has to do with the and Fayette, and to encourage the raising of swine," covers this case; that it applies to the territory which was the scene of the raid of defendant's hogs upon the premises and property of the plaintiff; and that under the provisions of said act plaintiff's fences were insufficient. I find, however, that this act was repealed by its title by the Act of 11th April, 1862, P. L., 496. It follows necessarily that the Act of 1784 can have no bearing upon the case. Is is not easy to trace through one hundred and fifty years all the legislation bearing upon this question, but as no legislation now in force has been called to our attention, which legalizes the running at large of hogs without yokes and rings, we may fairly presume it does not exist. And if an act can be found which justified such a thing in the early days of the Province, when much of the county was a wilderness, it would be so far inapplicable to the present condition of things that I have little doubt the Legislature would promptly repeal it. Yet if such an act were in force and called to our attention it would be our plain duty to sustain it, however objectionable it might appear to us. It is hard to imagine a more unneighborly act than permitting a lot of mischievous hogs to run at large. The defendant has shown us no statute which justifies him in doing this. No such right exists at common law: Gregg v. Gregg, 55 Pa. St., 227. The common law remedy by an action of trespass is not repealed by the stray laws in this State: Mitchell v. Wolf, 46 Pa. St., 147. The opinion of Chief Justice LowRIE in the case last cited is an interesting review of the legislation of this State in relation to swine. Judgment affirmed. For appellant, M. A. K. Weidner, Esq. Contra, John W. Reed and Harry R. Wilson, Esq8. COMMONWEALTH v. MILLER et al. On the trial of an indictment for maintaining a nuisance, where the defense is a denial, it is error to charge the jury that it is no defense that "the business complained of has been in operation several years; ** that the size of the establishment does not make any difference," ** neither is it a defense in any measure that the business is a useful one." While no one of these facts nor all together would justify the maintenance of a nuisance they might be sufficient, and were competent, evidence from which the jury might determine whether the defendants' refinery was a common nuisance at the place where it was located. under the instructions of the court, found the defendants guilty, and the sentence which has been pronounced requires the abatement or destruction of a plant in which some three hundred thousands of dollare are said to be invested, and which gives employment to seventyfive men. The assignments of error are quite numerous, but the important questions raised are few. The first four assignments, the sixth, ninth, tenth and sixteenth may be considered together as they relate more or less directly to the same subject. The learned judge had bis attention directed by the written points to the definition of a public nuisance and to the cir cumstances under which the defendants' refinery had been established and maintained for many years; and he instructed the jury that the character of the location when the refinery was established, the nature and importance of the business, the length of time it had been in The character of a business complained of must be de-operation, the capital invested and the influence of the business upon the growth and prosperity of the community were no defense to an indictment for nuisance. Among other expressions used by him are the following: "It is no termined in view of its own peculiar location and sur roundings, and not by the application of any abstract principles. Although the right to pure air is an absolute one in one sense, and such a contamination of the air as is injuri-defense to an indictment for a common nuisance ous to health cannot be justified. In another sense it is relative and depends upon one's surroundings. It is error to charge that "a reasonable doubt is such a doubt as would influence or control you in your actions in any of the important transactions of life." A refusal to allow defendants' counsel to comment on the fact that the Commonwealth objected to a request made that the jury be permitted to view the premises, which objection was sustained, is not error. Permitting or refusing to permit the jury to see the premises was a matter within the discretion of the court. that the business complained of has been in operation many years." "I do not think the size of an establishment makes any difference," and again, “Neither is it a defense in any measure that the business is a useful one," etc. If it had been an admitted or an established fact that the business of the defendants was a common nuisance, and they had attempted to justify its maintenance, these instructions would Certiorari to the Court of Quarter Sessions of have been appropriate, but the question before Allegheny county. Opinion by WILLIAMS, J. Filed January 5, upon a knowledge of all the circumstances 1891. the jury was whether the business was a nuisance. The decision of that question depended peculiar to the business, the place, its surroundThe defendants own and operate a refinery ings, and the employments of the persons in where crude petroleum and its products are pre- the vicinity. While no one of these, nor all pared for market. There are four acres within together, would justify the maintenance of a the enclosure fronting on the Ohio river. The nuisance, they might be sufficient, and they Pittsburgh and Western Railroad passes in front certainly were competent evidence from which of it along the river's edge. The Cleveland and the jury might determine whether the defendPittsburgh Raiiroad runs upon the street di- ants' refinery was a common nuisance at the rectly in the rear. The city of Allegheny, like place where it was located, and this was the its sister city Pittsburgh, owes its growth and question to be determined by the trial. They prosperity to the extent of its manufacturing might make, therefore, or contribute to make a interests, and the river front is almost wholly defense to the indictment trying. This distincgiven over to these great industries. The in- tion between an effort to justify an admitted or dictment charges that the defendants' refinery established nuisance and a denial that the busiis a public and common nuisance because of ness complained of amounts to a nuisance was the emission therefrom of certain noxious and evidently in the mind of the learned judge, but offensive smells and vapors, and because the in the haste that attends jury trials he failed to oils and gasses stored and used therein are in-place it clearly before the jury. He did say flammable, explosive and dangerous The jury, that the facts referred to had "weight and are P The fifteenth assignment relates to the definition of a reasonable doubt. The learned judge said: "It is such a doubt as would influence or control you in your actions in any of the important transactions of life." He did not say that a doubt that would cause one to pause and hesitate was, if fairly derived from the evidence, a reasonable one within the meaning of the criminal law, but that it must be one that would control the conduct in the important transactions of life. Our actions are determined by the preponderance of considerations. We doubt, hesitate, examine, balance the argument for to be considered in determining the degree of the pecuniary loss which its removal would the injury produced, and whether the effects involve. are so annoying, so productive of inconvenience and discomfort that it can be said to be really so prejudicial to the public as to be a nuisance," but following an explicit statement that these same facts were "no defense to an indictment for erecting and maintaining a nuisance," such as they were then trying, the jury was left without an adequate presentation of the defense. That such facts are proper for consideration and may make a defense has been long and well established: Wood on Nuisance, sec. 430. The same rule was applied in this State in Huckenstein's Appeal, 70 Pa. St., 102, and in Commonwealth v. Reed, 34 Id., 275. The character of | and against the given action, and act as the prethe business complained of must be determined in view of its own peculiar location and surroundings, and not by the application of any abstract principle: Wood v. Sutcliff, 8 E. L. & L., 221. Thus, in the case last cited, Lord CRAMWORTH referred to a case at nisi prius, in which he had instructed the jury to consider not only whether the quantity of smoke complained of would amount to a nuisance considered abstractly, but "whether it is a nuisance to a person living in Shields," which was the name of the town in which the business was conducted. It was in this respect that the instructions complained of in the first, second and third specifications were inadequate. They gave the general rule without the qualifications, which the situation of the defendants' refinery entitled him to. The right to pure air is in one sense an absolute one, for all persons have the right to life and health, and such a contamination of the air | as is injurious to health cannot be justified; but in another sense it is relative and depends upon one's surroundings. People who live in great cities that are sustained by manufacturing enterprises must necessarily be subject to many annoyances and positive discomforts by reason of noise, dust, smoke and oders, more or less disagreeable, produced by and resulting from the business that supports the city. They can only be relieved from them by going into the open country. ponderance indicates. A doubt that would control our actions in the important transactions of life would be one that was so strong as not to be overcome by the balancing process. Such a doubt would be practically an unconquerable one. It would lead us not simply to refrain from acting, but to act. The twelfth and thirteenth assignments relate to the request of the defendants that the jury be permitted to view the alleged nuisance and see its situation and surroundings and observe its operations before passing upon them. This was a reasonable request, and in view of the magnitude of the interests involved it is difficult for us to understand why it was not granted by the court. It was, however, a matter fairly within the discretion of the court, and we cannot say that it was an abuse of that power to refuse the application upon anything now before us. Much of the same thing may be said of the action of the court in refusing permission to defendants' counsel to comment upon the action of the Commonwealth in objecting to the proposed view of the premises. So much depends on what is said and the connection in which it stands that it should be a clear case of infringement upon the right of counsel to comment upon the incidents of the trial to induce us to interfere with the discretionary control of the trial judge. It appears by the thirteenth assignment that as counsel for the defendants were addressing the jury they proposed to comment on the action of the Commonwealth's counsel in refusing to join in the request for an examination of the The defendants had the right to have the character of their business determined in the light of all the surrounding circumstances, in-premises by the jury and in objecting thereto, cluding the character of Allegheny as a manufacturing city, and the manner of the use of the river front for manufacturing purposes. If looked at in this way it is a common nuisance, it should be removed, if not, it may be conducted without subjecting the proprietors to and that counsel for the Commonwealth "objected to the propriety of such comment." The objection was sustained and the comments were not allowed to proceed. The fact that an application was made by the defendants, objected to by the Commonwealth, and denied by the court, was within the knowledge of the jury because it had transpired, as we understand, in their presence. It was a fact that for some purposes might properly be referred to, as an incident of the trial, by counsel, but like other facts it might be commented upon in an improper manner or used for an improper purpose; and in the absence of precise information upon the subject we must presume that the learned judge exercised a proper supervision over the argument. We think the indictment is sufficient in form to sustain a verdict, and the verdict rendered is applicable to all the counts and was no doubt so intended by the jury, but for the reasons given the judgment cannot be sustained. Judgment reversed. For appellants, S. Schoyer, George Shiras, Jr., and S. B. Schoyer, Esqs. Contra, W. B. Rodgers, George Elphinstone and John S. Ferguson, Esq8. HOLLOBAUGH v. THE PEOPLE'S MUTUAL A person not permanently injured, who is the holder of are to indemnify for total permanent and partial per an accident insurance policy, the conditions of which manent disability, cannot recover, though there is an indorsement upon the back of the policy for payment for partial or total disability, followed by a schedule for which relief will be given. The words "totally" or "partially disabling" refer to the same kind of total permanent or partial permanent disablement provided for in the policy. Appeal of tho Peeple's Mutual Accident Insurance Association, defendant, from the judgment of the Court of Common Pleas of Butler county. lief is twenty-five hundred dollars, and in the second twelve hundred and fifty dollars, and a special provision is also made that for the loss of one eye the limit shall be three hundred and twenty-five dollars. The amount of weekly relief was fixed at not to exceed twenty dollars and for a period not to exceed twenty-six consecutive weeks. There is no provision in the main body of the contract for the payment of any benefits for injuries which result in partial disablement unless it is also of a permanent character. At the end of the printed conditions and stipulations the contract is formally closed with the customary attesting clause, followed by the signatures of the president and secretary, and the corporate seal. Under the contract as thus closed there would be no relief for the plaintiff as his injury, though a partial disablement was not a partially permanent disablement. But it is contended, and was so held by the court below, that by an indorsement upon the back of the certificate general relief was given in all cases of partial disablement. The language of the indorsement is as follows: "If the member shall sustain bodily injuries by means as provided for in this certificate, the payment of weekly relief, whether totally or partially disabling for the number of days fixed in schedule on back hereof, shall be in full satisfaction of all claims for said injuries." Then follows the schedule designating forty different kinds of injuries, for each of which is specified a fixed number of days for which relief will be allowed, and the "indorsement," by its terms, becomes applicable to each, and its meaning manifestly is that members who sustain any of those specific injuries and receive weekly relief therefor for the number of days designated, such. relief "shall be in full satisfaction of all claims for said injuries." The learned court below thought this "indorsement" enlarged the liability of the company so as to embrace cases of merely partial disable Opinion by GREEN, J. Filed January 5, 1891. The contract between these parties is composed of two main divisions, the second of them is a specification of several "conditions and stipulations" to which the main contract or "certifi-ment, and that, although the plaintiff's injury cate" as it is called is subject. This certificate is the body of the contract and constitutes the first division. It declares the kind of accidents for which the association will grant indemnity or relief. These are of two classes only. One is accidental injury which results in death. The other is accidental injury which is permanently disabling. The latter injuries are divided into two kinds, one called "total permanent disability," viz., the loss of both hands, both feet or hand and foot, and the other called "partial permanent disability," viz., the loss of one hand or foot, or both eyes. In the first of these two kinds of accidental injuries, the limit of the re was not embraced within the enumeration of the schedule, a memorandum at the foot of the schedule in these words: "Injuries not included in the above schedule will be adjusted upon their merits," sufficed to extend the obligation of the association to all kinds of injuries. Wə are unable to agree to this view of the contract. The "indorsement" plainly refers to the injuries provided for in the body of the certificate. The language is, "If the member shall sustain bodily injuries by means as provided for in this certificate." Clearly the injuries contemplated by these words are the injuries referred to and provided for in the certificate, and not others of a |