that the train was in sight the accident happened. | placing her as a party plaintiff on the record. There was conflicting evidence as to the rate of speed of the train, which plaintiff alleged was in excess of that permitted by ordinance, the testimony variously estimating it at from eight to twenty-five miles an hour; there was also conflicting testimony as to whether the whistle was blown or the bell rung.

Defendant requested the Court to charge, inter alia, as follows: "(5) That the plaintiff being about to drive a team, with two mules and a horse on a-lead, across a railroad track, with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position; and cannot recover for the loss of his son or his horse killed by the passing train. Answer. This point assumes a fact, the existence or non-existence of which is a question for your consideration, to wit: whether plaintiff placed his son on a horse over which he had no control. This is for you and we cannot assume it. If it were true it would be strong evidence of negligence. It is for you to find under all the evidence in the cause whether there was negligence either on the part of the plaintiff or of his son who was killed, which contributed to the production of the accident. If there was such contributing negligence the plaintiff cannot recover."

Verdict in favor of plaintiff for the sum of $2176 for horse and funeral expenses included and six cents costs."

Defendant moved in arrest of judgment, upon which motion the Court delivered the following opinion: "It is almost unnecessary to say we can arrest the judgment only for error apparent on the face of the record. Is there such error here? The wrong complained of in the narr. is

negligence resulting in (1) the killing of the plaintiff's minor son whereby he lost his services and was put to expense in taking care of and burying his body. (2) The killing of his horse.

"When the jury was about to be empanelled it was agreed by the parties that this action shall be tried in the same manner and with the same effect as if Linda Bock, wife of plaintiff, had been a party plaintiff thereto, and that the recovery, if any is had, shall include all her demands against the defendant, and that she shall be concluded by the verdict should it be in favor of the defendant.' We do not regard this as making the wife a party to the suit. We look upon it rather as an agreement that the entire damages should be determined and recovered in the suit by the husband, and that in consideration thereof the defendant should not thereafter be molested for any claim by or for the wife. "But suppose we consider that agreement as

How does this render an error apparent on its face? The effect would be to join her as a plaintiff on every count and upon every statement of ownership or claim. Instead of a separate cause of action in the husband for separate injuries to him we should have a statement of a joint cause of action for injury to joint property in the horse, joint expenses in the burial of the son, and joint loss by reason of his death. The declaration would still be a consistent whole. There would be nothing there to show that the several items of the demand were in different rights. The error, if any, in this respect would be on the trial and not on the face of the record.

"We see no reason why the common law claim for the loss of the horse and the statutory claim for the loss of the son may not be joined in the same declaration. They are of the same nature, admit of the same pleas and are followed by the same judgment. (1 Ch. Pl., 197; Martin v. Stille, 3 Wh., 337.)

"These views apply to all the reasons in support of the motion in arrest of judgment."

Judgment was entered on the verdict, and defendant took this writ of error, assigning for error, inter alia, (3) the answer to the fifth point presented as above, and (4 and 5) the overruling of his motion in arrest of judgment, and entering judgment on the verdict.

G. & H. Lear, for plaintiff in error.

On the facts as stated in the point submitted the Court should have charged absolutely that there was contributory negligence.

Glassey v. Hestonville, M. & F. P. R. W. Co., 7 Sm. 172.

Smith v. O'Connor, 12 Wr. 218.

Pittsburgh, All. and Man. R. W. Co. v. Pearson, 22
Sm. 169.

Smith v. R. R. Co., 8 WEEKLY NOTES, 165.
The action for the boy's death is a statutory

right and cannot be joined with the common
law remedy for the loss of the horse.

North Pa. R. R. Co. v. Robinson, 8 Wr. 178. 2 T. & H. Pr. 83.

I Chitty, 200.

The wife had no cause of action for the loss of the horse; there was therefore a misjoinder of her and her husband's right with his alone. 1 Chitty, 75 and 8 205.

B. F. Gilkeson (with whom were Geo. Ross and L. L. James), contra.

It could not be said as matter of law that plaintiff was guilty of contributory negligence. In the position in which the father was he could control the movements of the whole team. The position of the driver of a team of four or three horses is always upon the back or at the bridle of the near tongue horse; and under the instruction of the Court the jury so found; it was properly left a question for them.

Catawissa R. R. Co. v. Armstrong, 2 Sm. 282. done to save the horse or boy between the time Oakland R. R. Co. v. Fielding, 12 Wr. 320. of hearing the train and the accident. It canPhila. P. R. R. Co. v. Hazzard, 25 Sm. 367. Defendants took their chances on the trial not be pretended that any evidence shows the and ought not to unravel the case here, when horse could have been got out of the way had a the defect, if any, might have been taken ad-man sat in the place of the boy, or if the plainvantage of by a non pros. on the counts for the tiff had had a line on the horse. horse and the funeral expenses.

The assumption in the point forbade its affirmance. It was earnestly argued that the testimony authorized the Court to assume the fact.

Per

the State there is not a Judge or juror who would say a man could have no control of the lead horse unless he has a line on him. Be this as it may, it is not a question of law for the Court to say, where there is no line there is no control.

March 29, 1880. THE COURT. The defend-haps in all the farming and mining portions of ant's fifth point was, "That the plaintiff being about to drive a team, with two mules and a horse on the lead, across a railroad track, with a loaded wagon, where trains were running, propelled by steam, having placed his son, seven years of age, on the lead horse, over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of his son or his horse killed by the passing train." Answer. "This point assumes a fact, the existence or non-existence of which is a question for your consideration, to wit: Whether the plaintiff placed his son on a horse over which he had no control? This is for you, and we cannot assume it. If it were true, it would be strong evidence of negligence. It is for you to find, under all the evidence in the case, whether there was negligence of the plaintiff, or of his son who was killed, which contributed to the production of the accident. If there was such contributory negligence, the plaintiff cannot re

cover."

The point could have been well refused without qualifying remarks, and had it been there would have been no cause of complaint. Its assumed facts are but a fraction of the story, and the part omitted shows the plaintiff's care, before his attempt to cross the track, and that he was caught too suddenly for escape. In the light of the evidence, the Court could not say the plaintiff was negligent, unless it is negligence in itself for a teamster to cross a railway track with his little son riding the lead horse-a proposition which has not been advanced.

Excepting one remark, the instructions to the jury were accurate, adequate, and applicable to the proofs, enabling them to intelligently dispose of the questions submitted. That remark was in the answer to the fifth point, the Court saying, if the assumed fact were true, it would be strong evidence of negligence. As an abstraction, we think that was error; for on the verity of the facts as assumed, without reference to the other proofs, the plaintiff was guilty of negligence. Had the point been differently framed, submitting its isolated facts to the jury, it should have been affirmed; but the Court would have reminded them, as it did, that they were to consider all the facts established by the testimony.

The point must be considered with reference to the facts which the testimony would have warranted the jury in finding. From that they could have found that the train was running through the borough at the rate of twenty miles an hour, and no bell was rung nor whistle blown till after the accident; that the deceased was a remarkably stout and intelligent boy for his age, and was in the habit of working with his father; that he had often rode the lead horse in the team; had, on the day he was killed, taken the Unless it be certain that the error did the dehorse by a way under the railroad to the place fendant no harm, the judgment must be reversed, of loading, and geared him to the wagon, while and the cause sent back for another trial. This his father put on the load; that he got on the is doubtful. The jury judge of the credibility of horse, and the team was driven near to the rail-witnesses, and possibly they may have found the road, and stopped; that the plaintiff went upon facts as contended for by the defendant; and, the track, looked both ways, listened, and nei- if so, the error was hurtful. The opinion of the ther seeing nor hearing an approaching train, learned Judge of the Common Pleas, on the started back, telling the boy to come ahead; motion in arrest of judgment, comprises all that that the team was started before the plaintiff need be said respecting the fourth and fifth asreached it; he took the mule by the head, the signments. horse got his forefeet on the track, and was struck within three seconds from the time a wit-awarded. ness, who was standing by, saw the cars; that as soon as said witness heard the train, he hallooed, the plaintiff hallooed, but the train was too fast. Not a witness saw anything that could have been

Judgment reversed, and venire facias de novo

Opinion by TRUNKEY, J. MERCUR and GREEN, JJ., absent.

May, '80, 85.

May 11, 1880. man and Barndollar, by a deed containing a genRussell et al. v. Baughman et al. eral warranty, for $4400. No reference was made in the deed to the mining rights conveyed Ejectment-Specific performance-Estoppel-to Schell and Tate. Afterward the lands greatly -Laches-What amounts to such laches as increased in value, and Mench obtained a release will bar a right to specific performance. Ejectment is in Pennsylvania an equitable action, and when a plaintiff seeks by it to enforce specific performance of a contract to convey, he must show that he has himself been ready, prompt, and desirous of performance on his part; if he has slept on his rights, and by conduct long persisted in, conveyed the idea that he had abandoned them, he cannot, after there has been a material change of circumstances affecting the rights of the parties,

obtain redress.

Although this rule is not held so strictly against a defendant in possession, it is generally by reason of his equities, but when they are so weak as to present no substantial ground for protection, they must yield to the general rule.

By writing made in 1856, A. contracted to convey to B. & C. certain mining rights, the purchase-money to be paid in instalments; the hand money was paid, but no deed was made, nor were any of the instalments ever paid; in 1871 A. conveyed the land, by a deed making no reference to the prior grant of the mine, to D. & E., who, in 1878, brought ejectment against B. & C. On the trial B. & C. tendered the unpaid purchase-money, and sought to obtain specific performance of the contract of 1856:

Held (affirming the judgment of the Court below) that they were barred by lapse of time.

from all responsibility to Baughman and Barndollar, "on account of the clause of general warranty contained in their deed so far as the same applies to any damage or loss they might sustain on account of the ore or mineral lease to Tate and Schell."

By a lease dated May 30, 1872, the defendants granted several tracts of lands to the Kemble Coal and Iron Co. for a period of eleven years from April 1, 1872. The tract now in dispute was included in this lease, which was delivered and recorded July 13, 1872. Baughman and Barndollar notified the company in June, 1872, that they were the owners of the land and minerals in the Mench tract, and afterward, on March 6, 1873, executed to the Kemble Company an agreement allowing the company to mine on the Mench tract. This license was acknowledged by Baughman and Barndollar, and recorded April 23, 1873. In September 1872, the Kemble Company commenced mining, worked about one year, then ceased operations and notified their landlords accordingly. Nothing was ever expended upon, nor was there any

Error to the Common Pleas of Bedford ore taken from the Mench tract. In November, County.

Ejectment, by Baughman & Barndollar, against S. L. Russell, Thomas A. Scott, J. H. Sigmoun, Reese D. Fell and wife, and the heirs of Robert H. Gratz, deceased, to recover a tract of land, including the iron ore and minerals upon and under it, with the exclusive right to mine, take, and carry away the same.

1878, Baughman and Barndollar applied to the Kemble Company for a revocation of the license granted by the agreement of March 6, 1873. More than five years had elapsed and nothing was being done-they received no rent from the Kemble Company. The contract was rescinded by the Kemble Company. Subsequently this action was brought.

The defendants tendered plaintiffs, on the trial, $325.00, the balance of the purchase-money and interest in full, and they refused to take it. Defendants submitted to the Court below, inter alia, the following points:

On the trial, before HALL, P. J., the following facts appeared: On the 8th of February, 1856, Frederick Mench being the owner of about 222 acres of land in West Providence Township, Bedford County, Pa., executed an agreement with Samuel H. Tate and Wm. P. Schell, conveying (5). . . If the jury believe . . that "the right to dig, take, and carry away all such the vendees of Tate and Schell exercised acts of iron ore and other minerals as may be on, in, ownership by leasing said property to the Kemand under" said lands, "supposed to contain ble Coal and Iron Company, of which Baughman one hundred acres more or less," and Barndollar had notice; that Baughman and "for one dollar and fifty cents per acre pay- Barndollar sold ten acres of ground to said lesable in four instalments-one in hand and the sees, and stood by when the money was being remainder in annual instalments the deed to laid out and expended by said lessees in attemptbe made on the first of May following.' This ing to open the ores in said ground, then they are paper was not signed by the wife of Frederick estopped from setting up a claim to the land, and Mench. Twenty dollars was paid Feb. 8, 1856, the verdict can only be for the plaintiffs, the according to agreement. The agreement was land in dispute to be released upon the payment not recorded until Sept. 7, 1865. By divers of the unpaid purchase-money owing by defendconveyances the title of Tate and Schell became ants on the articles of agreement between Mench vested in the defendants. and Tate and Schell. Refused. (2d assignment of error.)

On Nov. 4, 1871, Mench and wife sold the whole tract of 222 acres to the plaintiffs, Baugh

(6) That an action of ejectment is a possessory

action, and by it possession is conceded in the defendant; that Tate and Schell having paid part of the purchase-money and taken possession, which is conceded by this action, their vendees, the defendants, are entitled to hold the land upon payment of the balance of the purchasemoney, and the verdict must be for the plaintiffs for the land in dispute, to be released upon the payment of the balance of the said purchasemoney. Refused. (3d assignment of error.) In the general charge his Honor said, inter alia: "If a party seeking a specific performance has been guilty of gross laches, or if in the intermediate period there has been a material change of circumstances affecting the rights, interests, and obligation of the parties a court of equity will refuse a decree. An ejectment is a substitute for a bill in equity to enforce a performance. A party cannot call upon a court of equity to enforce a specific performance unless he has shown himself ready, desirous, prompt, and

eager."

Conceding all they ask, they are far too late in asking for specific performance.

Porter v. Dougherty, 1 C. 405.
Callen v. Ferguson, 5 Id. 247.
Churcher v. Guernsey, 3 Wr. 84.
Alley v. Deschamps, 13 Ves. 225.
Peters v. Delaplaine, 49 N. Y. 362.
Roby v. Cossitt, 78 Ill. 638.

May 24, 1880. THE COURT. Ejectment in Pennsylvania is an equitable action. (Peebles v. Reading, 8 S. & R. 484.) When brought to enforce the execution of an agreement to convey, it is a substitute for a bill in equity. When a party calls upon a court of equity to enforce speself been ready, prompt, and desirous of percific performance he must show that he has himforming on his part; if he has been guilty of gross laches, and unreasonable delay, if he has slept on his rights, and by conduct long persisted in conveyed the idea that he had abandoned them, he cannot, after there has been a material

Verdict "for the plaintiff," and judgment change of circumstances affecting the rights, inthereon. The defendants took this writ, assign-terests, and obligation of the parties, move a ing for error, inter alia, the refusal of their points, as above.

Russell and Longenecker (W. H. Koontz with them), for plaintiffs in error.

Baughman and Barndollar are estopped from denying the validity of the lease to the Kemble Company, both because they stood by and saw money expended upon the faith of it, and because they ratified it by their subsequent agree

ment.

Troxell v. Lehigh Crane Co., 6 Wr. 514.

Chancellor to decree specific performance. (Parrish v. Koons, 1 Pars. 79; Patterson v. Martz; 8 Watts, 374; Callen v. Ferguson, 5 Casey, 247, Du Bois v. Baum, 10 Wright, 537; Miller v. Henlan, 1 P. F. Smith, 265; Cadwalader's Appeal, 7 Id. 158.) It is true the rule is not held so strictly against one who is in possession defending. It is, however, generally by reason of his substantial grounds for protection, they must yield equities. When they are so weak as to present no to the general rule. If possession be taken, and improvements be made and expenditures be in

In the contract between Mench, of the one part, and Tate and Schell, of the other, the cov-curred, they will create a substantial equity. enants were mutual, and it was as much the duty of Mench to tender a deed and demand the balance of the purchase-money, as it was of Tate and Schell to tender a performance on their

The agreement under which the plaintiffs in error claim was executed in February, 1856. It was for a mineral right in consideration of $150, to be paid therefor. One-fourth of the purchasepart. money was to be paid by the first of May followWilliams v. Bentley, 3 C. 301. ing, when the deed was to be executed, and the Then, too, the defendants below were in pos-residue in three annual instalments thereafter. session of the minerals under said land. This is conceded by the form of action, which is a possessory action and admits the possession in the defendants; and being in possession, and having paid part of the purchase-money, and being ready and willing to pay the balance, we were entitled to have specific performance of the contract decreed.

Dixon v. Oliver, 5 W. 509.
Caldwell v. Fulton, 7 C. 480.
John Cessna, for defendants in error.

It is not alleged that there was any actual possession taken by Tate and Schell, or the grantees; they rely upon the technical plea that our bringing an action of ejectment admits their possession. It is difficult to see how the action brought in 1878 can affect the state of facts in 1856.

Twenty dollars, part of the first instalment, was paid at the execution of the agreement, and nothing more was ever paid. There was evidence indicating a willingness on the part of the vendor to convey on payment according to the contract; but no subsequent payment was made nor deed demanded. Neither the vendee, nor those claiming under him, took any visible possession of the premises, they made no expenditure on them, they took no ore from them. After a lapse of nearly fifteen years, the defendants in error elected to consider the plaintiffs in error in the constructive possession, and brought this action of ejectment. In the mean time the lands had become of very great value, and the plaintiffs in error sought to revive equities which they

had suffered to sleep for so many years. It was | ing to $2050, for which he paid him $753, too late. The time to assert them had passed. Judgment affirmed.

$35.21 of which was a debt due him by the firm, and the rest was in notes he held against Halstead individually, excepting the sum of $225, which he paid on a note of Halstead's held by Stewart. These notes were bought while the firm was deeply in debt, and without the knowl: edge and consent of Decker, who had sold out March 15, 1880. his interest in the firm to Halstead. Some time after the sale of the notes, the firm became insolvent. Hartley, as he alleged, collected about $700 of the notes, the most of which were surrendered to Hartley, and new notes given Hartley in place of the same.

The Court, in the general charge to the jury, said, inter alia: "Hartley claims he purchased of Halstead about Dec. 2, 1872, notes and judgA partner, who sells firm property without the knowl-ments owned by Decker & Halstead, amounting edge and consent of his copartner, and with intended fraud on the rights of creditors of the firm, to pay his own individual debts, gives the purchaser no title as against

Attachment execution, by Norman White and D. K. Morss, assignee of Norman White, against M. J. Decker and Andrew Halstead, defendants, and Silas Hartley, garnishee. Returned "served" as to Halstead and Hartley, and “ non est inventus" as to Decker. A rule was taken on the garnishee to answer interrogatories, who after-so great value then to recover an amount equal wards pleaded “nulla bona.”