Caldwell et al v. McCalmont or to part of it, and he may demur to part, plead to an- The ruling in this case was upheld and approved in Stagmaier vs. Keystone Coal Co., 232 Pa., 140, decided in 1911; and Clark vs. Edwards, 58 Superior Court, 456, decided in 1914. Upon the face of the bill, all of the averments of which being now taken as admitted in this hearing, the plaintiffs would seem to be entitled to relief either at law or in equity. There was a simple agreement upon the part of the defendant that, "in the event of oil being produced upon said land," he would convey to the plaintiffs "the one-ninth (1-9) of the one-eighth (1-8) royalty, that being the usual agreed royalty." The usual agreed royalty was one-eighth (1-8) of the oil produced and the plaintiff's having conveyed a one-ninth (1-9) interest in the land, were entitled to one-ninth part of the one-eighth, or the one-seventy second (1-72) part of the oil produced; royalty or rental was to be paid out of the product from the land, not in place as suggested. And the plaintiffs were to have their share in specie, no doubt in accordance with the long established and universal usages of the oil industry-"the usual agreed royalty." This proportion of the oil the plaintiffs were to have to be disposed of by them at their pleasure, and the defendant could not, under the terms of his agreement, convert it and pay in money what might be estimated to be its value. The court could almost take judicial notice of the usual method of the division of oil in the pipe line where the royalty interest is set apart to the proper party as the method in view of the parties at the time. The defendant, before and since the filing of the bill, has continuously produced oil and has continuously converted the 1-72 part of it belonging to the plaintiffs. Under the circumstances disclosed, the plaintiffs to secure their rights would seem to be entitled to a bill in equity in order to obtain an adequate and appropriate remedy. Caldwell et al v. McCalmont It is apparent that a remedy sought in a court of law would be inconvenient and of doubtful adequacy and entail a multiplicity of actions. "Complainants in a 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.' Appeal of Brush Electric Co., 114 Pa., 574. Gray vs. Citizens Gas Co., 206 Pa., 303. Gas Co. vs. Gas Co., 186 Pa., 443. The first and second grounds for the demurrer are overruled. The third, fourth, fifth and sixth reasons stated in the demurrer, call attention to the length of time that has elapsed since the agreement of 1891 and argue that the Court should not afford any relief upon that account. We think that these are questions in pais more properly to be considered when all of the facts involved in the case are developed. We are of the opinion that we cannot dispose of the case in so summary a way. No right of action accrued to the plaintiffs until 1907 and since that date, according to the plaintiffs' contention, the defendant has been continuously trespassing upon the plaintiffs' rights by appropriating their share of the oil. And as disclosed by the defendants' brief, this is not the first time that an action has been commenced by the plaintiffs. And now, to-wit, Dec. 18, 1919, the demurrer is overruled and it is ordered that the case proceed according to the pleadings and practice in equity. TOLLON V. HAND & JOHNSON TUG CO. Foreign attachment-Petition of third party to dissolve-Disputed ownership. Where property is attached in foreign attachment, and a third person claims to own the same, the proper procedure is for such other person to intervene and become a party to the suit, and the question of ownership can then be determined. A petition by a third party alleging ownership of the property attached in such other party, does not warrant a dissolution or setting aside of the writ. Tollon v. Hand & Johnson Tug Co. Motion to dissolve foreign attachment, No. 72 February Term, 1920. C. P. Erie County. Brooks, English & Quinn for Plaintiff. WHITTELSEY, J., January 6, 1920-This is a foreign attachment in assumpsit by virtue of which the Sheriff has attached the tug "Buffalo" and its contents in the possession of Captain Patrick Daveny, Master. The Great Lakes Towing Company claim to be the owner of the tug and have given bond and taken the tug with out prejudice to the rights of either the plaintiff or the defendant in this case. The petition of Patrick Devaney, Master of said tug, has been presented alleging that the Great Lakes Towing Company own the said tug and that the defendants, Hand and Johnson Tug Company, had no interest in the said tug as owner and ask the Court to dissolve the foreign attachment issued in this case and a rule to show cause has been granted on this petition. The plaintiff has demurred to the petition, thereby admitting for the purposes of this case that the allegations of the petition are true, viz: that the tug "Buffalo" is owned by the Great Lakes Towing Company and that the defendant, the Hand and Johnston Tug Company, had no interest whatever in said tug "Buffalo" as owner. It is contended on behalf of the plaintiff that there is no provision in the Act of Assembly relative to proceedings in foreign attachments regularly issued for the dissolution of the attachment for any of the reasons assigned in the petition in this case and that the title to the property, viz: the tug "Buffalo" can not be decided under the rule to dissolve a writ of foreign attachment and that the only manner in which a writ of foreign attachment can be dissolved is by the giving of security as provided in the Act of 1836 and its supplements. This contention seems to be well founded and sustained by the decision of the Court in Hildreth vs. Kepner, 11 District Reports, 789, in which it is held "Where property is attached in foreign attachment, and a third person claims to own the same, the proper procedure is for such third person to intervene and become a party to the suit, and the question of ownership can then be determined. A disputed title to the property attached does not warrant a dissolution or setting aside of the writ." Pleasants vs. Cowden, 7 Watts & Sargent 379; Lorenz vs. Orlady, 87 Pa., 226. ORDER. And now, January 6, 1920, after hearing, the rule to show cause why the attachment in this case should not be dissolved is discharged at the cost of the petitioner. WALKER V. WALKER, ET AL. Retrial-Joint tort feasers-Testimony-Charge of Court-Failure to object. : 1. Where there is conflicting testimony as to whether two defendants are joint tort feasors, it is for the jury to say where the weight of the testimony is. 2. It is not error for the Court to merely call the attention of the jury to the testimony of every witness without attempting to recite it in full. 3. If at the end of the charge both parties are given an opportunity to call the Court's attention to anything which has been omitted and the plaintiff fails to take advantage of the opportunity, he cannot complain because the Court failed to call the jury's attention to the fact that the defendants had placed certain valuations on the goods at another time. Written Contract-Parol testimony to vary admissible when not subject to suit-Declaration against interest. 4. When a contract, not the subject of the suit, is offered merely to show joint liability on the part of two defendants, it is subject to the rules relative to declarations against interest and parol testimony is admissable to explain or deny it without allegation or fraud, accident or mistake. Retrial-Depositions-Inadmissible-No retrial pending. 5. Depositions to be read upon the re-trial of a case taken while no retrial is pending are inadmissable upon the second trial and it is not error to exclude them if the attorneys for the other party have not participated in their making. When a case is tried it is presumed to be tried right, and there is no presumption that there will be a re-trial. Sur motion for a new trial, No. 147 September Term, 1916. C. P. Erie County. Sherwin & Carroll for Plaintiff. Brooks, English & Quinn for Defendants. ROSSITER, P. J., December 23, 1919-This action of trespass was brought by the plaintiff against the defendants to recover damages for the unlawful detention of her property, for injury to the property itself, and for machinery, fixtures and equipment taken, removed from the premises, and sold. There was no dispute at the trial that on February 5, 1915, a verdict in ejectment was rendered in this Court in favor of the plaintiff, May L. Walker, upon which judgment was afterward entered for premises equipped as a grape juice plant situated at Nineteenth and State Streets in this city. ཏ༔ ༔ The claim of the plaintiff was that the defendants had wrongfully kept her out of the possession of the premises from the 5th day of February, 1915, until some time in June, 1916; that in the interim they had dismantled the plant, injured the building and taken out the machinery and equipment, and sold it. There was no dispute that the plaintiff, May L. Walker, did not Walker v. W alker, et al. come into possession of the premises until about June, 1916, nor was there any denial on the part of the defendants that the plant had been dismantled and the machinery and equipment taken therefrom and sold; but the defendant, T. W. Walker, denied that he was in any way responsible for the detention or injury to the property, the dismantling of the plant, or the sale of the equipment. The real contention therefore was: First. Was there a joint liability? viz: were the defendants joint tort feasors, in pari delicto, and were they chargeable with a community of interests in the detention, injury, dismantlement, removal and sale of the property, with equal rights to direct and govern the movements and conduct of each other with respect thereto or any part thereof, and, Second. If so, what were the damages? The case was tried and submitted to a jury who found a verdict for the defendant, whereupon the plaintiff made a motion for a new trial, assigning seven original reasons therefor and later filed a brief covering ten. We will consider them seriatim as they appear in the brief. The first of these reasons is as follows: "The evidence in favor of concert of action was overwhelmingly to the effect that both T. W. Walker and the Walker Products Company were interested in the ownership of the property and were both active in disposing of it." The evidence on this branch of the case, briefly stated, was to the effect that after the verdict in ejectment of Febuary 5, 1915, and until the time the premises were delivered over to the plaintiff, May L. Walker, T. W. Walker had the keys thereto; that when the inventory was made he admitted the appraisers to the premises; that the defendants together rented part of the premises to one, Nelson, who made the checks in payment for rent payable to them and these checks were indorsed by both; that T. W. Walker was occasionally on the premises when Mr. Nelson was there; that he told a witness by the name of Hiles that he had shipped six or seven cars of machinery from the plant and that he, T. W. Walker, : Аләшүәвш әүҙ J0 [елошәл әү рәзәәлір рив səѕүшәла әү иоѕем that the shipping bills were signed by the Walker Grape Products Company, per T. W. Walker; that T. W. Walker assisted and superintended the removal of the property and that some receipts were O. K'd by him; that T. W. Walker and the Walker Grape Products Company made an agreement in writing (which was admitted in evidence) to deliver the property to the parties to whom it was old and in that agreement warranted that they were the true and lawful owners of the articles with absolute right to immediate |