some evidence to indicate that the particularment provided for her, and for the extra help grating was more likely to cause an accident than the hundreds of gratings over which people pass daily with safety, before a jury can be permitted to find that it is a nuisance, or that the party who maintains it is guilty of negligence. There does not seem to be such evidence in this case. The grating in two feet was sunk a half inch on one side and elevated a half inch on the other. There was a piece broken off the frame, but the break did not extend to the flange which holds the grating in place. The grating was not bolted down, but this is the usual condition of such gratings. These facts did not seem to us sufficient to carry the case to the jury. The fact that the grating was afterwards fastened down might properly go to the jury with other evidence of negligence. But, under the circumstances of this case, that alone will not entitle plaintiff to go to the jury. The rule which admits such facts as evidence of negligence no doubt often causes persons to permit dangerous conditions to continue, for fear of strengthening the evidence against them. To say that such act will make a case for the jury, where none exists without it, would greatly increase the evil effects of the rule, and is not necessary to the attainment of just results. Beyond any question, an accident sometimes reveals dangers of which no one would have thought before it occurred. Possibly, were a second Possibly, were a second accident to occur with respect to this grating, the fact that it was a second one might carry the case to the jury, even though the witnesses failed to point out any defect to which the accident could be attributed. At all events, when an accident has occurred, the person upon whose premises it has hap pened, however confident he may be that he has been guilty of no negligence, should be willing, afterwards, from motives of humanity, to adopt any reasonably practicable additional precautions against its recurrence. Possibly, the municipal councils should, by ordinance, abolish or modify the use of these gratings in the streets. But, assuming this to be a correct conclusion, it is not for the courts to assume councils' functions, and accomplish the end by changing a rule of law, and holding individuals liable for failure to take unusual precautions. On the whole case, and after a careful reconsideration of it, we are of opinion that the nonsuit was properly granted." Samuel J. Graham, for appellants. Elliott Rodgers and Stone & Potter, for appellees. MCCOLLUM, J. The plaintiff Mary Rushton claims $30,000 as damages for an injury she received in May, 1895, by a fall into a coal hole or chute in the center of a sidewalk on Federal street, in Allegheny City; and her husband, Henry Rushton, claims $10,000 to compensate him for the loss or impairment of her services, for medical treat required because of her disability. The evidence descriptive of the injury received is not disputed, and the only question to be determined is whether the evidence in the case is sufficient to charge the city, the owners of the property abutting on the sidewalk at the point of the casualty, the lessee in possession of the same, or either of them, with negligence. At the close of the evidence on the part of the plaintiffs the defendants moved for a compulsory nonsuit, and their motion was sustained. The nonsuit was followed by a motion of the plaintiffs to take it off, which motion, upon due consideration of it by the court, was denied. It is a circumstance worthy of note that the defendants in the suit are the city, the owners of the property abutting as aforesaid, and the lessee of the owners. The joinder of the city with the owners of the property and their lessee as defendants shows that the plaintiffs were not able to specify the party chargeable with the alleged negligence, and that it had its origin in their hope of establishing negligence on the part of at least one of the several parties thus united. We agree with the learned court below that the plaintiffs cannot maintain their suit without proof of the negligence charged in the statement of their claim. The evidence to sustain the charge must be such as would authorize a jury in finding the material fact as alleged, and evidence which falls short of this does not meet the requirements of the law. If, therefore, the evidence in the case at bar is not sufficient to support the controlling charge, it was the plain duty of the court, on the motion of the defendants, to enter a compulsory nonsuit, and to deny the plaintiffs' motion to take it off. The coal holes or chutes in the sidewalks of Allegheny City are authorized by the municipal authorities, and compliance with the regulations relating to them is all that is required of the owners or tenants of the abutting properties. The coal hole or chute in question is, in its location and construction, like the great majority, if not all, of the coal holes or chutes in said city. It was familiar to Mrs. Rushton, and, according to her own testimony, she passed over it at least twice a week during a period of five years immediately preceding her fall. None of the hundreds of pedestrians who passed over it daily before and after the occurrence in question received any injury from it, or complained at any time to any of the defendants or other persons of a defect in it. All the undisputed facts in the case were opposed to the plaintiffs' contention, and the testimony submitted by them on the trial was clearly insufficient to sustain the charge of negligence against either of the defendants. A careful perusal and consideration of all the testimony warrants this conclusion. It fol lows that the court below did not err in entering or refusing to take off the nonsuit. Judgment affirmed. BRYANT v. PITTSBURG TIMES. (Supreme Court of Pennsylvania. Oct. 6, 1899.) LIBEL-PROBABLE CAUSE QUESTIONS FOR JURY. Where, in an action for libel, the defense of probable cause is not clearly established by competent evidence, it is error to withdraw the case from the jury, and enter a verdict for defendant. Appeal from court of common pleas, Allegheny county. Action by S. H. Bryant against the Pittsburg Times to recover damages for the publication of a libel. From a judgment for defendant, plaintiff appeals. Reversed. W. G. Crawford and Ulysses S. Vogan, for appellant. Geo. C. Wilson and Wm. D. Evans, for appellee. MCCOLLUM, J. The announcements contained in the publication complained of, and directly affecting the plaintiff in this case, are that Coroner McDowell had resolved to hold an inquest on the body of Mrs. New, who died of malpractice; that Dist. Atty. Haymaker had sent County Detective Robinson to assist the coroner; that the detective and the deputy coroner had subpoenaed Dr. S. H. Bryant, of 821 Carson street, who is alleged to have performed the operation; that he is a leading homeopathic physician of the South Side, and is under police surveillance, at the order of the county detective. The common and natural inference from the publication was that the death of Mrs. New was the result of an abortion, and that the physician then under police surveillance was connected with it. It may be stated here that the plaintiff appeared at the inquest in obedience to the subpoena, but he was not called to testify, and it was not shown that he had knowledge of Mrs. New's illness previous to the publication, or that he was at any time her medical adviser, or a participant in the crime which resulted in her death. The only conclusion arrived at by the coroner's investigation was that Mrs. New's death was caused by an abortion, but it did not charge any person as having been responsible for, or implicated in any manner in, the crime. The plaintiff, regarding the publication as libelous, and injurious to his reputation and business, instituted this suit. On the trial of it in the court below he testified that he did not know Mrs. New, and that, to the best of his knowledge, he had never seen her, or prescribed for her, at his office or elsewhere. His testimony in this particular was corroborated by his son, and no attempt was made to contradict it. He also introduced evidence showing the effect of the publication upon his reputation and practice. It was not denied by the defendant company, on the trial or the appeal, that the publication complained of virtually charged an indictable offense. But the defense of probable cause was not clearly established by competent evidence, and therefore it was error to withdraw the case from the jury, and enter a verdict for the defendant. In Conroy v. Pittsburgh Times, 139 Pa. St. 337, 21 Atl. 154, our Brother Mitchell, speaking for this court, said: "The general rule is that nothing but proof of the truth is a defense to a libel. That it was privileged, because published on a proper occasion, from a proper notice, and upon probable cause, is the excepted case; and he who relies upon the exception must prove all the facts to bring himself within it;" and "that, where a publication charges an indictable offense, the presumption of innocence is prima facie evidence of want of probable cause, and sufficient to put the defendant to proof of the facts to support his claim of privilege." He also said, in the same case, "that the presumption of innocence cannot be overcome by mere rumor or idle report, or careless and insufficient examination set up as a probable cause." Applying these principles to the case at bar, it seems clear that it should have been submitted to the jury. Judgment reversed, and venire facias de novo awarded. GAS COMPANIES-DISCRIMINATION. A company incorporated for supplying natural gas to customers for heat and light, which is a quasi public corporation, cannot discriminate by charging more for gas used for lighting than for that used for heating; there being no reason therefor, except that it is worth more to the consumer for lighting, measured by what he would have to pay for substitutes for such purposes. Appeal from court of common pleas, Fayette county. Suit by George Bailey against the Fayette Gas-Fuel Company for an injunction. Decree for defendant, and plaintiff appeals. Reversed. Robinson & McKean, for appellant. N. & S. E. Ewing, for appellee. MITCHELL, J. The defendant company was chartered, under the act of May 29, 1885 (P. L. 29), to produce, transport, supply, etc., natural gas for heat, light, or other purposes. It has been supplying the gas for both heat and light, and proposes to continue doing so, but upon terms making a difference in price according to the use to which the gas is put by the consumer. The question now before us is the reasonableness of this regulation. In his opinion the learned judge below said, "So far as concerns this case, the defendant company may be regarded as incorporated for the purpose of supplying natural gas to consumers for heat and light." Not only did its charter powers cover both uses, but, as already said, its actual operation has included both, and it is not intended now to aban don either, even if that could be done. The corporate powers are the measure of corporate duties. The gas is brought by the company through the same pipes for both purposes, and delivered to the customers at the same point,-the curb. Thence it goes into pipes put in by the consumer, and, after passing through a meter, is distributed by the customer through his premises according to his own convenience. The regulation in question seeks to differentiate the price according to the use for heating or for light. It is not claimed that there is any difference in the cost of the product of the company, the expense of supplying it at the point of delivery, or its value to the company in the increase of business or other ways. Some effort was made to show increased risk to the company from the use of gas for lighting purposes, but the evidence of danger was so remote and shadowy that it cannot be considered as more than a mere makeweight. The real argument seeks to justify the difference in price solely by the value of the gas to the consumer as measured by what he would have to pay for a substitute for one purpose or the other if he could not get the gas. This is a wholly inadmissible basis of discrimination. The implied condition of the grant of all corporate franchises of even quasi public nature is that they shall be exercised, without individual discrimination, in behalf of all who desire. From the inception of the rules applied in early days to innkeepers and common carriers down to the present day of enormous growth of corporations for nearly every conceivable purpose, there has been no departure from this principle. And from all the legion of cases upon this subject the distinguished counsel for the appellee have not been able to cite a single one in which a discrimination based solely on the value of the service to the customer has been sustained. Hoover v. Railroad Co., 156 Pa. St. 220, 27 Atl. 282, was much relied on by the court below, but was decided on a very different principle. That was an action for damages for unlawful discrimination by a dealer in coal because a manufacturing company had been allowed a rebate on coal carried to it. But it was held that as the rebate was allowed in consideration of a minimum of coal to be carried per day, and also in view of return freight on the product of the manufacturing company, it was not an unreasonable discrimination; in other words, that the company might look for its compensation not only to the actual money freights from present service, but also to increased business to grow out of the establishment of a new industry in that place. So, also, Phipps v. Railway [1892] 2 Q. B. 229, cited for appellee, where the decision was put upon the right of the railroad to make special rates for freights from distant points, which otherwise it could not get at all. Both cases belong to the numerous class of discriminations sustained on the basis of special advantages to the carrier, not the customer. Decree reversed; injunction directed to be reinstated and made permanent; costs to be paid by appellee. SHERRARD'S EX'RS v. JOHNSON et al. Appeal of TORRENCE. (Supreme Court of Pennsylvania. Oct. 6, 1899.) JUDGMENTS-LIENS-EXECUTION. 1. Judgments not being liens on after-acquired lands, that execution which is first levied will prevail. 2. Issue of execution on a judgment more than five years old, without preliminary scire facias, cannot be objected to by another creditor, but only by the debtor. Appeal from court of common pleas, Fayette county. Action by Thomas G. Sherrard's executors against Joseph Johnson and another. Levy on the judgment for plaintiffs was held superior to that on the judgment of Catherine M. Banning to the use of Gertrude O. Torrence, and she appeals. Reversed. Edward Campbell, for appellant. John M. Core, for appellees. MITCHELL, J. The levy on the Banning judgment to the use of appellant was made on November 24th, while that on appellee's judgment was not until the next day. Neither judgment being a lien on the land, which was after-acquired, the first levy had the first grasp on the fund. Packer's Appeal, 6 Pa. St. 277. But, the appellant's judgment being more than five years old, the learned auditor held that it would not support an execution, and he therefore distributed the fund first to the appellee. In so doing, however, he overlooked the point that the objection was not made by the debtor defendant, and was not available to any one else. The execution on the Banning judgment was not void, but merely irregular. As between the parties, a judgment unpaid remains in force, notwithstanding the expiration of its lien. There is no affirmative presumption of payment until after the lapse of 20 years, though after a certain length of time, fixed by the act of April 16, 1845 (P. L. 538), at five years, the law assumes that the defendant may have a valid reason against an execution, and therefore requires that he shall have an opportunity to show it before his land is seized. This provision, however, is for the benefit of the debtor, and, if he refuses or neglects to take advantage of it, no one else can. The object of the scire facias to revive et quare executionem non, etc., is to give the debtor notice that he may be exposed to an execution unless he shows cause against it. It requires a valid defense, and if he has none, or refuses or neglects to present it, a new judgment will be entered, on which execution may at once be issued. No other creditor has any standing to interject a defense for him in the scire facias, and 10 reason exists for allowing such interference if the plaintiff should assume that there is no defense, and issue execution without the preliminary scire facias at all. These principles were stated by Kennedy, J., in Righter v. Rittenhouse, 3 Rawle, 273, as follows: "At common law, after a year and a day had elapsed from the date of the judgment in personal actions without execution being issued thereon by the plaintiff, a presumption arose that the defendant might be able to show that it was paid or discharged; and after that, without affording him an opportunity to do so, the plaintiff could not take out execution upon his judgment. To enforce the payment of it, he was compelled to bring an action of debt upon it, and to prosecute the same until he obtained a new judgment, upon which he might sue out execution. To avoid the delay that attended this course of proceeding, the statute of Westminster II. gave a scire facias upon the judgment in such actions after a year and a day, requiring the defendant to show cause, if any he had, why the plaintiff should not have execution of his judgment. An execution sued out after the year and a day was never considered void, but voidable merely." It is firmly settled that even a judgment which is fraudulent as to the debtor cannot be set aside by creditors unless there is collusion or fraud as to them (Thompson's Appeal, 57 Pa. St. 175; Zug v. Searight, 150 Pa. St. 506, 24 Atl. 746); and, a fortiori, must the same rule be applied where the judgment or the proceeding upon it is not fraudulent or void, but merely irregular. In Drexel's Appeal, 6 Pa. St. 272, judgment against the Towanda Bank was entered by confession on a warrant signed by the president only in his own name. It was held that the other creditors of the bank had no standing to impeach the judgment, this court saying: "It might have been reversed on a writ of error, or set aside in the court below on motion, but only at the instance of the defendant; never at the instance of a stranger. As long as the party injured by the irregularity submits to it, no one else can complain, for a third party has a right to interfere with a judgment only when it is collusive." See, also, McLaughlin v. McLaughlin, 85 Pa. St. 317, where a number of analogous cases are cited in the opinion on page 323. The cases relied upon by the learned auditor do not touch this point. In Miller v. Miller, 147 Pa. St. 545, 23 Atl. 841, and Bannon v. Rathbone, 3 Gr. 259, the court acted on the motion of defendant. In Lyon v. Cleveland, 170 Pa. St. 611, 33 Atl. 143, the question arose on a motion by a terre tenant acquiring title to the land while subject to the lien of plaintiff's judgment to strike off a levy on a revived judgment to which the terre tenant was not party. What was decided was that until the purchaser put his title on record, took possession, or in any other way gave actual or constructive notice to the plaintiff, a revival against the original debtor would bind the land. The remarks of our late Brother Williams by way of argument and illustration must be read with reference to the state of facts in the case before him. It was not intended to say that the lien of a judgment and the right to issue execution were identical, or that the existence of the former depended on the latter. Under the act of April 4, 1798 (3 Smith's Laws, 331), the lien of a judgment continued for five years, though no execution could be issued on it, after a year and a day, without preliminary scire facias, until the period was extended to five years by the act of 1845. It is argued by appellee that appellant has not sufficiently proved the assignment of the Banning judgment to her. But the recovery is in the right of the legal plaintiff. No third party has any standing to question the status of the plaintiff to use. Judgment reversed, and fund directed to be applied first to the judgment of Catherine Banning; costs to be paid by appellees. NORTHERN CENT. R. CO. v. WALWORTH et al. (Supreme Court of Pennsylvania. Oct. 6, 1899.) CONTRACTS-SALE OF STOCKS-SPECIFIC PERFORMANCE-DEFENSES-VALIDITY OF CONTRACT-UNCERTAINTY-WANT OF MUTUALITY PUBLIC POLICY - ADEQUATE REMEDY AT LAW. 1. A contract reciting that the seller "claims to be the owner" of certain stock, which he agrees to sell, is not too uncertain as to ownership to prevent a decree of specific performance. 2. A subsequent sale and delivery of securities to others, in disregard of a prior contract, is no defense to a specific performance, when the bill avers that the transferees had knowledge of the prior contract, and makes them parties. 3. A contract for the sale of stock of a corporation, which is to be binding on the buyer provided his examination of the books of the company shall be satisfactory and prove the correctness of a covenant as to its earnings, is not void for want of mutuality, as not necessarily binding on the buyer, since, if he refused to take the stock on a tender by the seller, specific performance could be decreed against him. 4. A contract for the sale of stocks, whereby the seller undertakes that all debts of the company shall be paid on the day of the transfer, and the buyer is to retain a sufficiency of the price to assure him that the company is free from debt, is not void for uncertainty in not stating the debts, since, if default is made in the payment, the amounts to be deducted can be shown. 5. A specific performance of a contract for the sale of stocks and bonds of a particular company may be decreed, where they cannot be secured except by force of the particular contract. 6. A contract for the purchase by a railroad company of the stocks of another is not against public policy, for Act April 23, 1861 (P. L. 410). authorizes such purchase. 7. Specific performance of a contract for the sale of stocks cannot be defeated by a contention that there is no irreparable injury, as the buyer has an adequate remedy at law, where a money consideration, even if obtainable, cannot afford a substitute for the sale. Appeal from court of common pleas, York ing debt of the company, up to the time of county. Bill by the Northern Central Railroad Company against Warren F. Walworth and others for specific performance of a contract to sell and deliver certain stocks and bonds. From a decree for defendants, plaintiff appeals. Reversed. delivery, June 25, 1898. To make sure of the payment of these items, it was further agreed that the vendee, the plaintiff, might retain out of the purchase money so much as was sufficient to make the payment. The foregoing are the whole of the terms of the sale, and it is scarcely necessary to repeat that they are The contract, after reciting that defendant absolutely free of any question as to their claimed to be the owner of certain shares of the stock of the York Southern Railroad Company, and certain of its bonds, which he desired to sell, and plaintiff was willing to purchase, stipulated that defendant agreed to sell to plaintiff such certificates and bonds; that such railroad company was free from debt, except certain mortgages therein recited, which defendant was to pay; that its net earnings for the previous year were sufficient to pay the interest on the bonds and other indebtedness of the company and leave a net revenue of a specified amount; that defendant would submit the accounts and books of such railroad company to the examination of plaintiff, and, in consideration, plaintiff agreed to pay a stipulated amount, provided its examination of the accounts of the railroad company was satisfactory to it, and proved the correctness of the results of the operation of such railroad company as stipulated by defendant; that plaintiff was to retain such portion of the purchase price as might be necessary to liquidate the principal and interest on the unpaid indebtedness for which such railroad company was liable, so that it would be assured that the railroad company on the day on which the stock was to be transferred was free from debt, as contracted by defendant. Horace Keesey and Nevin M. Wanner, for appellant. Niles & Neff and J. S. Black, for appellees. GREEN, J. By the very explicit and plainly-expressed terms of the written contract in question in this case, the defendant Warren F. Walworth agreed to sell and deliver to the plaintiff, on or before the 25th day of June, 1898, certificates for 10,000 shares of the capital stock of the York Southern Railroad Company, and $142,000 of the 5 per cent. bonds of the same company, due in 1944. In consideration of the said sale and transfer, the plaintiff agreed to pay to the vendor the sum of $160,000. There is not the least element of doubt or uncertainty as to what this contract is and means. It means just what it says, and what it says is so plainly and clearly expressed that a description of its meaning would be merely a repetition of its words. The vendor further agreed that the railroad company should be free of debt, except its mortgage debt of $399,950, and its car-trust notes, not exceeding $4,000, and he agreed also that he would pay all the interest due on the mortgage debt and car-trust notes, and the principal and interest of all the float meaning. The vendor agreed that he would use his best endeavors to secure for the vendee the remaining 2,000 shares of the stock of the railroad company, and the remaining $8,000 of its mortgage bonds, at the lowest price counts, books, and records of the company practicable, and that he would submit the acto the examination of a representative of the vendee; but these stipulations were merely ancillary, and constituted no part of the actual contract of sale. The bill alleges, and the demurrer necessarily admits, that the vendee, at the request of the vendor, extended the time of performance from the 25th day of June to the 31st day of July, 1898. And the bill further avers, and the demurrer does not deny and necessarily admits, that the vendee was ready and willing to comply with its part of the contract in all respects, both on the 25th day of June and on the 31st day of July, but that the vendor failed and neglected to comply with his part of the contract on either of those dates. The bill further alleges, and the demurrer does not deny and necessarily admits, that on the 27th day of August, 1898, the vendor absolutely refused to perform his part of the said contract of sale, and declared the same terminated. The bill further avers that after the execution of the contract of sale the defendant Walworth, in fraud of plaintiff's rights, sold and delivered the said stock and bonds to other of the defendants, naming them, and that these other defendants, when they bought and received the said stock and bonds, had knowledge and were advised of the previous contract made by said Walworth with the plaintiff, and colluded with Walworth for the delivery of the stock and bonds to themselves in fraud of the plaintiff's rights. Some amendments to the bill were allowed, but, as they are not material to the controversy in its present state, they are not now considered. The demurrer filed by the defendants to the bill contains a number of averments, many of which are of so trivial a character as not to require consideration. The learned court below refused a special injunction, and subsequently sustained the demurrer and dismissed the bill. The reasons for this action are expressed in the opinion filed, and they are chiefly to the effect that the contract is too uncertain and indefinite in its terms; that the contract lacks mutuality, and is "loaded down with conditions contradictory and incapable of performance"; that a bill for specific performance is an appeal to the conscience of a chancellor, who will not order its performance if it is hard or unconscionable |