(11) The Master erred in reporting that the refusal of the plaintiffs to contribute the amounts demanded by the defendants, and the circumstances attending such demand, was not a waiver of the plaintiffs' rights, and that the plaintiffs are entitled to relief.

Thirteen exceptions were also filed by the complainants; all of these were dismissed by the Court, and the report of the Master was confirmed. (No opinion filed.) Whereupon both parties took appeals, assigning for error the action of the Court in dismissing their respective exceptions, inter alia, as above.

Richard C. Dale and Samuel Dickson, for the Fidelity Co.

The Supreme Court will reverse a Master's finding for erroneous inferences and conclusions from the facts.

Kutz's Appeal, 12 WEEKLY NOTES, 27.
Burke's Appeal, 11 Id. 501.
These parties refused to contribute and join
with the company in the risks, and are therefore
barred from a recovery after the property proved
more valuable than they supposed.

Yeager & Grim's Appeal, 12 WEEKLY NOTES, 29;
S. C., 4 Out. 88.

J. Edward Carpenter, for Lennig et al., appellants.

Yeager v. Grim's Appeal (supra) differs from Yeager v. Grim's Appeal (supra) differs from the present in important particulars. In that case there was a refusal of one of the parties to an agreement to pay his proportion, whereas in this case the plaintiffs made no arrangement about the purchase, but were simply to receive new bonds in place of those which they held.

April 14, 1884. THE COURT. The learned Court below dismissed the exceptions and confirmed the Master's report without filing an opinion. We are left, therefore, without the aid which the discussion of the case by that Court would have given us.

bound to advance the plaintiffs' share of purchasemoney and expenses is without merit. There is nothing in "Exhibit A" from which such an agreement can be reasonably inferred. The property was sold to Ogden for $35,000. The defendants paid the purchase-money, of which the sum of $10,001.40 was applicable to the expenses of the foreclosure proceedings and the payment of prior liens, and the sum of $10,958.60 was applicable to the payment of the dividends of bondholders other than the plaintiffs and the defendant corporation. No portion of this purchase-money was contributed by the plaintiffs, or by either of them. On the contrary, when applied to shortly after the sale to contribute their respective shares, they flatly refused. As one of the witnesses remarked: They hooted the idea of the thing, and would not have entertained it for a moment."

66

Up to this point we agree with the Master. But, in discussing the liability of the plaintiffs to contribute, he says: "If the case turned upon this simple question, it would doubtless be necessary to dismiss the bill. There were, however, other circumstances to complicate the matter. with the property as their own, without the leave, After the purchase by the defendants, they dealt assistance, or advice of the plaintiffs, or any of them. They did more. They gave away, as a gratuity to Ogden, an integral part of the property purchased for the joint benefit of the value of the road represented by the shares of plaintiffs and defendants, to wit, that part of the stock issued by the re-organized railroad company, being all over $65,000 the amount of the mortgage bond issued by the company."

Just here we think the Master fell into error. It was contended by the defendants that they did not purchase the property under "Exhibit A;" that they fixed $30,000 as the limit which they authorized their agent to bid; that he refused to exceed his limit, although urged by others to We find no fault with the Master's findings of do so; that the property was finally knocked fact, nor, up to a certain point, with his conclu- down to Mr. Ogden for $35,000; that they sions. Assuming that the agreement embodied subsequently advanced him the money to pay in "Exhibit A" was participated in by the defen- for the property, and merely took the title as dants below, and was binding upon them as found collateral to secure their advances. We need by the Master, we are of opinion that he was not discuss this view of the case, for conceding clearly right in holding that the plaintiffs below the purchase to enure to the benefit of the plainwere bound to contribute their pro rata share of tiffs, all the defendants could be called upon to the purchase-money and the expenses. The do was to permit the plaintiffs to come in under most that can be claimed for "Exhibit A" is that the new arrangement. The defendants were it was a contract that in case the defendants should not required by "Exhibit A" to purchase the purchase the road, it should be for the joint bene- property in any event and without any regard fit of the parties to the agreement. This implied to price. If they gave the plaintiffs an oppornecessarily that the purchase was to be at their joint expense; that is, that the purchase-money and expenses should be contributed by all the parties in proportion to their respective interests. The present contention that the defendants were

tunity of coming in and sharing the benefits of the purchase, they did all that in equity they could be called upon to do. That they did this appears clearly in the case. The plaintiffs refused to contribute a dollar of the purchase

The plaintiffs also appealed from this decree, and have filed numerous assignments of error. What has been said renders a discussion of them unnecessary. The plaintiffs' appeal is dismissed at their respective costs.

money. With such refusal their right to partici- | purchase-money, they would have been in a pate in the direction of the affair, or in the pro- position to question such outlay. But until such ceeds of the sale, ceased, and the defendants had payment they had no interest in the purchase. the right to deal with the property as their own. They declined to pay any part of the assessment The claim of the plaintiffs to share the benefits upon the ground that they were not obliged to of the transaction, and yet leave the burden and contribute anything, either as purchase-money risk to the defendants, cannot be sustained. or otherwise. Such mode of dealing was pointedly condemned in Yeager & Grim's Appeal (4 Outerbridge, 88). The appellees contend, however, that Yeager & Grim's Appeal differs from the present case for the reason that in that case it was agreed that the purchase-money should be paid by the three parties who had agreed to buy at the assignee's sale, and the appellee refused to pay his proportion, whereas, in the case in hand, the plaintiffs agreed to accept new bonds for those which they then held in the reorganization. We are unable to perceive this distinction. We regard "Exhibit A" as an agreement between certain of the bondholders of the Delaware Shore Railroad Company, that one of their number, to wit, the defendant company, should buy in the said railroad for their joint account and benefit, and that in the proposed plan of reorganization the parties thereto would accept new bonds in lieu of

The appeal of the defendant company is sustained; and as to them the decree is reversed, and the bill dismissed at the costs of the appellees.

Opinion by PAXSON, J.
STERRETT, J., absent.

W. M. S., Jr.

the old bonds held by them. This is a very Common Pleas-Equity.

C. P. of Lycoming Co.
November 8, 1884.
City of Williamsport v. McFadden.

poration Ordinance prohibiting erection of
wooden buildings under penalty, cannot be
enforced by injunction unless breach constitutes
nuisance per se-Adequate remedy at law.
Sur demurrer to bill in equity.

common proceeding in such cases, and necessarily involved an outlay of money. The sum of $10,001.40 was required to pay the costs of foreclosure, expenses, and prior liens, and the further sum of $10,958.60 to pay other bondholders not parties to the agreement. By whom Equity-Injunction-Nuisance-Municipal corwas this money to be paid? Manifestly, by the parties interested, unless it was expressly agreed to the contrary. The plaintiffs contend that they were not to pay anything; they say such was their understanding. Their understanding, however, is a matter of no consequence unless it amounted to an agreement with the defendant company, and of this there is no evidence. On the contrary, "Exhibit A," which we must accept as the final understanding of the parties, contains nothing from which we can reasonably infer that the defendants were to advance the plaintiffs' share of the purchase-money.

The bill set forth that the city of Williamsport has authority of law to prescribe limits wherein no buildings shall be constructed except of brick, stone, or other incombustible material, with fireproof roof; and to impose a penalty for the violation of such ordinance. That pursuant to such authority the said city did by ordinance establish such fire limits and provide a penalty for the Under the view we take of the case, the plain-violation of such ordinance. That the defendant tiffs stand in the same position as the other bond- is the owner of a lot of land within the said fire holders not parties to "Exhibit A." This entitles them to a dividend out of the purchasemoney paid by the defendants, but not to participate in the proceeds of the sale made by them. The plaintiff, George W. Hall, appears to have received his share. This is a matter, however, with which we have no concern in this pro-such unlawful erection. ceeding.

limits, on which was erected a frame barn, but which was recently destroyed by fire, and that said defendant threatens and intends to erect on said lot a wooden building contrary to the provisions of said ordinance. That there is no adequate and sufficient remedy at law to restrain

The bill prayed that the defendant may be We need not discuss the matter of the $10,000 restrained by injunction from proceeding with claimed by the defendants for moneys expended the building, re-building, erection, or construcby them in the improvement in the road. Had tion of said wooden building, etc., and general the plaintiffs contributed their quota of the relief.

Defendant demurred to the bill on the following grounds:

Common Pleas—Law.

(1) Because, as appears by the bill itself, this proceeding is an attempt to enforce an ordinance of the city of Williamsport, and a court in equity C. P. No. 2. has no jurisdiction.

(2) Because there are no facts stated in the bill which bring the case within the jurisdiction of a court of equity.

(3) Because an ordinance or by-law of a municipal corporation cannot be enforced by a bill in equity.

Wood, for complainants.
Watson, for respondent.

a

Has the Court jurisdiction? The statute which confers the power on the city to establish by ordinance fire limits, provides that it may fix penalties

November 1, 1884.

Commonwealth ex rel. Boas v. Coit et al. Mandamus-Director of corporation—Right of access to books, etc.—Writ of mandamus to compel the officers of a corporation to perform their duties must join the corporation as defendant.

Rule to quash writ of alternative mandamus. The relator, Edward P. Boas, was a director of the Reading Iron Works, of which corporaNovember 8, 1884. THE COURT. This is tion Edward W. Coit and F. W. Ralston, the not a bill to restrain a nuisance; no such allega- defendants, were respectively president and treation is made. This is not a bill to restrain surer. The information declared, “That on the defendant that irreparable damages to the plain- 30th day of September, 1884, your petitioner, tiff may be prevented; no such allegations are in pursuance of his duties as a director, visited made. The only purpose for which this bill is the office of said corporation, at 259 South filed, or equitable relief sought, is to aid the city Fourth Street, in the said city, and as he had of Williamsport in enforcing its ordinance in done on many former visits requested that he respect to the establishment of a fire limit. should be permitted to inspect certain books of the company then in the possession and control of the treasurer and president, which books belonged to the company, and were kept in accordance with the rules of the company for the purpose of showing its transactions and the position of its affairs; and that the president and treasurer not only refused to put such books at his service, but absolutely refused to give him any access to them, and still persist in the said That it is necessary for your refusal of access. petitioner to see the books and papers of the said corporation, and to have free access to them, in order that he may properly fulfil those duties which attach to his position as a director; that by reason of the said refusal, your petitioner has suffered damages, and has no specific legal remedy therefor."

for the violation of such ordinance. Here is a

clear remedy fixed by law. It does not appear that the penalties now fixed are inadequate for the purpose. If the penalties now fixed by the ordinance are inadequate to secure its enforcement, the power to make them sufficient is vested in the city plaintiff. Until the city has exercised all its powers in endeavoring to enforce its ordinances, surely it has no right to complain. If the Court has jurisdiction to aid by injunction in enforcing this ordinance, the same relief may be sought in enforcing the ordinances relating to the keeping open of barber shops on Sunday; the sale of quack medicines on the streets; the sale of unwholesome food in the markets, and indeed everything else which the city has power to regulate.

the

In High on Injunctions, page 466, section 788, the law is thus laid down: “ Equity will not lend its aid to enforce by injunction the by. laws or ordinances of a municipal corporation restraining a certain act, unless the act is shown to be a nuisance per se." See, also, City of Hudson v. Thorne (7 Paige Ch. 261).

I am of opinion that the bill in this case does not set forth such a case as entitles the plaintiff to the relief sought. Preliminary injunction dissolved, demurrer sustained, and plaintiff's bill dismissed with costs.

Opinion by CUMMIN, P. J.

The alternative writ, based on this information, was as follows :—

"We, therefore, being willing that due and speedy justice should be done in this behalf, do command you, the said Edward W. Coit and F. W. Ralston, firmly enBoas, at all times, access to all the books and papers of joining that forthwith you give to the said Edward P. the said The Reading Iron Works that he may ask or make demand for. .. Or in default thereof, etc.

The less expensive and the proper practice is tories in detail, and that he had failed to answer to have a commission issued.

It is notorious that evasive answers can be additional exceptions were afterwards filed, of made to the best framed interrogatories.

thirteen cross-interrogatories, "that the witness tion of the presiding Judge, whose refusal to did not answer and the commissioners did not permit it could not be assigned as error. Upon require him to answer the interrogatory specifi- this point, see Combs and Hankinson's Appeal cally and in detail;" and the remaining exception raised the objection that the testimony was taken in the third instead of the first person, as required by the Equity Rules.

The paper-books presented when the case was argued consisted only of copies of these exceptions.

(41 Leg. Int. 400; ante, 247). If, however, the objection is that the previous answer does not fully answer the cross-interrogatory in question, it is evident that a copy of such previous answer, and of the interrogatory in chief to which it is in response, should have been set forth in the paperbooks. Three Judges are to pass upon the suffiWith the vast and constantly increasing busi- ciency of the answer, and it can scarcely be ness of this Court, it is manifest that it would be expected that they shall go by turns or together impracticable, even if it were proper that we to the original document and extract for themshould be asked to do so, for the Judges to wade selves the portion alleged to be incomplete. through a very voluminous deposition, and, Paper-books should furnish everything necessary aided only by memory of what was stated by to a proper comprehension of the question in concounsel in oral argument when the matter was troversy; and where they do not, it would be heard with perhaps twenty-five or thirty cases of entirely just to dismiss the exceptions or refuse at least equal importance, pick out defects which the relief sought for by the party in default. the exceptions failed specifically to indicate. We have, however, examined the original anSince the argument, counsel for the exceptants swer, and, so far as we can discover, the witness have furnished us with supplemental paper-books, has failed to answer, as he was called upon to do in which the alleged defects in the answers to by the third cross-interrogatory, from whom he the third, fifth, sixth, eighth, and tenth cross-obtained the information referred to in his aninterrogatories are stated with sufficient precision, swer to the interrogatory in chief. The inforbut no reference is made to the other exceptions, mation may have been furnished by persons still which therefore we must treat as withdrawn or living, who, therefore, are themselves the proabandoned, and dismiss accordingly. We may per persons to testify. The exception to the ansay as to the exception that the answers of the swer to this part of the third cross-interrogatory witness are given in the third person instead of must be sustained. And, for a similar reason, the first; that the execution of a commission, in we sustain the exception to the answer to the a case like this, is governed not by the Equity Rules, but by those of the Courts of Common Pleas. These rules have, in terms, been adopted by us as to matters heard before the Auditing Judge (Rule VII. section 1), and it is proper that they should apply where the proceeding is one which seeks for an issue to be tried in the Common Pleas Courts, where the deposition may, therefore, ultimately be read. It was conceded that there was no practice in those Courts which, so far as this objection is concerned, would make the deposition in its present shape inadmissible, and that the objection itself was purely technical and without substantial merit. The exception may therefore be overruled with entire safety.

Before proceeding to the consideration of the exceptions set forth in the supplemental paperbook, we may remark that we have not been furnished with the answers to the interrogatories in chief, which the witness refers to as sufficiently answering the cross-interrogatory. If the objection is merely that he was bound to repeat what he had already so answered, we have no hesitation in overruling it. To determine otherwise would be productive of no other result than adding to the expense of execution and spinning| out the testimony to an inordinate length. It is true, a witness examined orally before the Court is often asked to repeat what he has previously stated; but this is a matter purely in the discre

tenth cross-interrogatory, so far as it fails to reply to the interrogation, with reference to the relationship of John Cullen and Elizabeth or Eliza Cullen and Laurence Toole, whether his information came from relatives of such persons, how they were related, and when and from whom the information reached the witness. We have found no answer to this part of the interrogatory.

The eighth cross-interrogatory calls upon the witness to state whether certain designated persons did not, when they called upon him in 1882, "relate many things respecting a certain Peter Cullen, whom they claimed to be their uncle." This has not been answered; and as the matter inquired of may be of importance in determining how far the witness's recollection is based upon his own knowledge or results from recent conversations with parties interested, the exception to this extent must be sustained.

We are unable to see that the witness has failed to answer substantially the fifth and sixth cross-interrogatories, and the exceptions to his answers to those cross-interrogatories are overruled.

The exceptions sustained are, to the extent indicated in this opinion, those relating to the answers to the third, eighth, and tenth cross interrogatories; the other exceptions are all overruled. Opinion by Penrose, J.

W. I. S.