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Sheffield Glass Bottle Co. v. Hi nes, Director General of Railroads.

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the liability imposed by the previous portion of the Section being "Whenever a common carrier receives property for transportation between points within this Commonwealth * * it shall be liable for any loss, damage, or injury to said property caused by it, or any other common carrier to which said property may be delivered," or over whose line or lines such property may pass.

The defendant carrier was at fault in not forwarding a bill of lading showing that the freight had been prepaid at Sheffield, which resulted in the refusal of the Philadelphia & Reading road at first to deliver the goods.

The real cause of action, however, rests upon the total loss of goods, through the negligence of defendant, or its connecting carrier, and in either event the plaintiff, is entitled to bring its action against the initial carrier, the defendant.

The demurrer is overruled and judgment directed to be entered in favor of the plaintiff and against defendant, unless defendant shall, within fifteen days from this date, file a supplemental affidavit of defense as to the facts.

ESTATE OF SAMUEL P. THOMPSON, DECEASED.

Debts of decedent-Claim for services-Family relationPresumption.

Where decedent was an owner of a house and leased the same to his mother who kept boarders and roome rs, among whom he himself was a boarder, and decedent's sister worked as a domestic for the mother, it was held, that there was no family relation existing between the sister and brother and she was allowed compens ation for her services for nursing the decedent.

Exceptions to Auditor's report, 67 February Term, 1919. O. C. Erie County.

Clark Olds, Esq., for exceptant.
William E. Hirt, Esq., contra.

ROSSITER, P. J., December 27, 1919-Before the auditor, Amelia Thompson Smith, made claim for services rendered the

Estate of Samuel P. Thompson, Deceased.

deceased in his lifetime which claim was disallowed for the reason, although not so stated, that such a relationship existed between her and her brother, Samuel P. Thompson, the decedent, as to repel the idea of contract; that the implied assumpsit raised by the rendering of the services was rebutted by proof showing an intention to give and receive without compensation. These conclusions were arrived at by reason of the relationship of the parties, Amelia Thompson Smith being a sister to Samuel P. Thompson.

From the meager evidence on the subject taken before the Auditor it appears that Samuel P. Thompson, his mother, and his sister, Amelia Thompson Smith, the claimant, lived together in a house owned by Samuel P. Thompson and, if the proofs ended here, we might conclude that the Auditor was correct in his findings, but further testimony discloses that Samuel P. Thompson rented this house to his mother, that she kept boarders and roomers and that he, himself, was a boarder, paying his mother five dollars a week and that his sister, Amelia Thompson Smith, worked as a domestic for her mother.

Under these circumstances then, it being established that there were services rendered, is the presumption that the law raises to pay for such services overcome by reason of the relationship between Amelia Thompson Smith and Samuel P. Thompson? Does such a relationship rebut the presumption which the law raises? We are of the opinion that it does not. There was no family relationship existing between the sister and the brother. He was a boarder at his mother's boarding or rooming house. His sister worked for his mother and he paid board and while she might give him little attentions as his sister without rendering him liable to pay for them, there is no implication of law that we know of, under these circumstances, or under any decisions that we have been able to find, that the devoting of night after night to the nursing of her brother were the ordinary services of a sister. They were not ordinary services, they were extraordinary, and therefore, in our opinion the sister should be compensated to the extent of the services rendered.

The Auditor's report is therefore, now December 27th, 1919, referred back to the Auditor for reformation in compliance with this opinion.

price.

LAY BROTHERS V. SCHABACKER.

Sales-Recission-Act of ownership-Liability for contract

Samuel et. al. vs. The Delaware River Steel Company, 264, Pa., 190, distinguished.

(See Erie County Law Journal, Vol 1, page 112.)

Rule for new trial and judgment n.o. v., No. 260 February Term, 1918. C. P. Erie County.

Lytle F. Perry for Plaintiff.

Gunnison, Fish, Gifford & Chapin for Defendant.

ROSSITER, P. J.-And now, December 29th, 1919, the rule granted September 22nd, 1919, to show cause why a re-argument on the motion for a new trial in the above entitled case should not be granted is discharged for the reason that after a careful examination of the opinion by Mr. Justice Frazer in the case of Samuel et al. vs. The Delaware River Steel Company, 264, Pa., 190., and which was published after the opinion refusing a new trial in this case was filed, we have come to the conclusion that that opinion is not applicable to the facts here.

Equity practice-Pleadings-Demurrer and answer-Adequate remedy at law-Laches.

A defendant in equity cannot demur to the whole bill and at the same time answer to the whole bill. They cannot stand together. A defendant in equity is permitted by the rules to plead or demur to the whole bill or to part of it, and he may demur to part, plead to another part and answer as to the residue, but he may not plead or answer and demurrer also to the whole bill or to the same part of the bill. If he demurred to part and answered to the same part, the demurrer in such case is overruled by the answer.

Complainants in the Court of Equity ought not to be turned out of Court for want of jurisdiction, merely because they have a remedy at law; it must be shown that their remedy at law is adequate.

Oil and gas-Leases or agreements-The usual royalty.

Where one leases or conveys land for a royalty or share of the oil, the lessor is to have his share in specie, to be set apart to him in the pipe line in accordance with the usual method of the division of oil, to be disposed of by him at his pleasure, and the lessee cannot convert it and pay in money what might be estimated to be its value.

Demurrer to bill in equity, No. 58 September Term, 1919. C. P. Warren County in Equity.

L. C. Eddy for plaintiff.
D. I. Ball for defendant.

HINCKLEY, P. J., December 18, 1919-The plaintiffs, by their bill filed, in substance set forth that they, with Clyde S. Caldwell (whose interest has since vested in them), being the owners of an undivided one-ninth part of a tract of land in Cornplanter Township, Venango County, State of Pennsylvania, did on April 6th, 1891, convey the same to the defendant, and as a part of said transaction, contemporaneously with it, and as a consideration therefor, the defendant executed and delivered to them a written agreement which is as follows:

"For valuable consideration I hereby agree that in
the event of the recovery of the land in Cornplanter Town-
ship, Venango County, Pennsylvania, containing one hun-
dred and fifty acres, more or less, quit claimed to me by
James Perry Caldwell, Clyde S. Caldwell, Christy A.
Ryhal and Henry J. Ryhal, her husband, on this 6th day
of April, 1891, I will, in the event of oil being produced
upon said land to the said parties above named the one-
ninth (1-9) of the one-eighth (1-8) royalty, that being
the usual agreed royalty.

"Witness my hand and seal this sixth day of April,
A. D. 1891.
"H. R. McCALMONT."

Caldwell et al v. McCalmont

which said agreement was duly acknowledged and recorded in the Recorder's Office of Venango County, Pennsylvania on May 19th, 1914, in Deed Book No. 332, page 227. That afterwards the defendant did recover said land and has since continued to exercise and enjoy complete ownership of the same.

That in 1907, the defendant commenced producing oil and since, and now is producing oil from said land.

That defendant has not conveyed to the plaintiffs "the oneninth (1-9) of the one-eighth of the oil produced" although requested so to do, but has marketed the entire oil produced and refuses to account to plaintiffs for the same and at date of filing of the bill, has on hand or in the pipe lines, large quantities of oil produced, and that all the data relating to the production and sale of the said oil is in the possession of the said defendant.

The prayers of the bill are: (2) specific performance of the agreement; (3) an accounting; (4) damages for delay and performance, and (5) general relief.

To the bill the defendant has filed what is styled a "demurrer and answer" and consists of a joint statement of reasons for the demurrer and specific answers to each paragraph of the plaintiff's Bill and further statements of matters of defense.

Both the demurrer and answer are to the whole of the Plaintiff's Bill.

The reasons set out for demurrer are contained in the first six paragraphs of the "demurrer and answer," to-wit: (1) the plaintiffs are not entitled to the relief claimed; (2) want of jurisdiction in a court of equity: (3) bar of the statute of limitations; (4, 5 and 6) the staleness of plaintiffs' claim.

Then follows fourteen paragraphs answering seriatim the paragraphs of the plaintiffs' bill and setting up general matters of defense.

This hearing was "solely upon the demurrer to the plaintiffs' bill" as stated by the defendant.

In this state of the record, we are squarely confronted by the ruling of the Supreme Court in Barbey's Appeal, 119 Pa., 413, where, as here, there was a demurrer to the whole bill, and an answer to the whole bill as well.

The opinion of the Supreme Court is by Mr. Justice Paxson and is as follows:

"The demurrer in this case goes for nothing. It is overruled by the answer. The defendant demurred to the whole bill and at the same time answered the whole bill. This is not allowable under the rules of equity pleading. They cannot stand together. A defendant in equity is permitted by the rules to plead or demur to the whole bill

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