months nor until after the mining had been begun. There was no imminent peril requiring a speedier remedy than given at law. The evidence fails to show danger of irreparable injury, unless relief be granted in equity; nor did the Master find any unusual or peculiar circumstances to distinguish this case from an ordinary taking possession of unimproved land under a good faith assertion of title, when the possession had previously been in an adverse claimant. It does not appear that the defendants' claim of title is in bad faith; the nature and limited extent of the improvements indicate the open assertion of their right rather than an attempt to carry away the body of coal under a false claim. If the defendants' title is good, their entry was lawful, and they had the right to continue in possession. What they did and were doing, if the real owners, was the legitimate exercise of their right, and we discover nothing peculiar in the case to justify an injunction, the effect of which was to turn them out.

Decree reversed, and bill dismissed at the costs of the appellee.

Opinion by TRUNKEY, J.

July, '83, 174.

E. A. B.

an explosion of gas occurred, and plaintiff was severely burned. It appeared that the explosion had been caused by the plaintiff's light igniting the gas that was escaping from a broken pipe which had been laid across and under the road by Patterson to convey gas from his well on one side of the road to a drilling well on the other side of it. This pipe had been in place about six weeks, was one or two inches in diameter, and was so laid that in the centre or travelled portion of the road it was buried to the depth of about one foot, while in the gutters on either side it was exposed and rested upon the bottom of the gutters. The break in the pipe had occurred about an hour previous to the accident by the deviation of a team from the centre of the road and the contact of the wheels with the exposed portion of the pipe. The plaintiff lived about a quarter of a mile from the place of the accident, had frequently passed along the road, but he had never noticed the pipe, nor was there any evidence that the township authorities had received actual notice or knowledge that the pipe had been laid across the road.

The defendant requested the Court to charge : (1) That there is no evidence of negligence on the part of the defendant." Refused. Exception. (First assignment of error.)

(2) "That there is no evidence of actual or May 15, 1884. constructive notice to the supervisors of the defendant of the dangerous condition of the road at the point where the accident occurred." Re

Otto Township v. Wolf.

Municipal corporations-Streets and highways-fused. Exception. (Third assignment of error.)

Negligence.

Where the owner of adjacent property ran a small gaspipe under a highway in such a manner that the same was exposed at the bottom of the gutters, and, after remaining there about six weeks, said pipe was broken at the point where it traversed the gutter by the deviation of a passing team, and within an hour afterwards a person passing with a light was injured by an explosion of gas escaping from the fractured pipe, the township is not liable for the injury, there being no evidence that the township authorities had any knowledge of the existence of the pipe up to the time of the accident.

Error to the Common Pleas of McKean County.

Case, by A. W. Wolf against Otto Township, to recover damages for an injury alleged to have been caused by the negligence of the defendant.

On the trial, before WILLIAMS, P. J., the following facts appeared: The plaintiff, who was an oil well driller or contractor, on the evening of January 5, 1880, was passing along the highway in Otto Township carrying a lighted lantern. When he had reached a portion of the highway lying between the properties of one Patterson,

The Court directed a verdict for the plaintiff for such compensatory damages as the evidence warranted. Verdict for the plaintiff for $1000 and costs, and judgment thereon. Whereupon the defendant took this writ, assigning for error, inter alia, the refusal to charge as requested above, and the direction of a verdict for the plaintiff.

W. E. Burdick, W. I. Lewis, T. A. Morrison, for plaintiff in error, cited

Rapho, etc., Township v. Moore, 18 Smith, 404.
Borough of Easton v. Neff, 14 WEEKLY NOTES, 206.
Vanderslice v. Philadelphia, 13 Id. 373.
McCully v. Clarke, 4 Wright, 399.
Railroad Co. v. McElwee, 17 Smith, 311.
Canal Co. v. Bentley, 16 Id. 30.

Johnson v. Railroad Co., 20 Id. 357.
McLaughlin v. City of Corry, 27 Id. 109.

Fritsch and Wife v. City of Allegheny, 10 Norris,
226.

City of Allegheny v. Zimmerman, 14 Id. 287.
Payne v. Reese, 4 Outerbridge, 301.

Baker v. Fehr et al., 1 Id. 70.

Born v. Plank Road Co., 12 WEEKLY NOTES, 283. Borough of West Chester v. Apple, 11 Casey, 284. E. L. Keenan, M. F. Elliott (Wolf & George with them), for defendant in error.

The township had constructive notice.

Born v. Plank Road Company, 12 WEEKLY NOTES, 283.

Norristown v. Moyer, 17 Smith, 363.
McLaughlin v. City of Corry, 27 Id. 109.
Negligence is the absence of care according to
the circumstances.

Frankford, etc., Turnpike Co. v. Phila. & T. R. R.,
4 Smith, 345.

The township is liable for a neglect of duty in leaving the pipe exposed.

Blake v. St. Louis, 40 Mo. 569.
Bassett v. St. Joseph, 53 Id. 290.
Welsh v. St. Louis, 73 Id. 71.

2 Dillon, Mun. Corp., 2d ed. 1024.

Basset v. St. Joseph, 14 American Rep., 446.

Nor can this duty be evaded, suspended, or direction to find for the plaintiff. This was withcast upon others by any act of its own.

2 Dillon, Municipal Corporations, 1027. Storrs v. Utica, 17 N. Y. 104.

drawing the entire case from the jury, and could only be sustained by assuming that the township was an insurer against all defects or obstructions,

And in support of the foregoing general views latent as well as patent, in the public highways,

are:

Hincks v. Milwaukee, 46 Wis. 565.
Detroit v. Corey, 9 Mich. 165.
Mayor v. Waldner, 49 Ga. 316.

Hilliard v. Richardson, 3 Gray (Mass.), 349.
City of Springfield v. Le Claire, 49 Ill. 476.
Erie City v. Schwingle, 10 Harris, 388.
Bartlett v. Crozier, 15 Johnson, 254.
Woodring v. Porks Township, 4 Casey, 361.
Born v. Plank Road Company, 12 WEEKLY NOTES,
283.

McLaughlin v. City of Corry, 27 Smith, 109.

and even where the defect or obstruction is the work of a wrongdoer or trespasser. This would be a severe rule to apply, and is not justified by the authorities. In Rapho and West Hempfield Townships v. Moore (18 P. F. S. 404), it was held that "a municipality is not an insurer against all defects, latent as well as patent, in its Structures on highways, but is liable for negligence. Where the defect in a lawful structure is latent, or is the work of a wrongdoer, either express notice of it must be brought home to the corporation, or the defect must be so notorious as to be evident to all passers, when the corporation is charged with constructive notice."

This principle is applicable to the case in hand. Mr. Patterson may not have been a wrongdoer in taking his pipe across the road, if done in a careful manner, but it was not the act of the township, and was done without its knowledge. Hence the township is not liable until knowledge of the act complained of is brought to the attention of the supervisors, unless the defect be so open and notorious as to be evident to all passers-by. Even in the latter case, a reasonable time, depending upon the character and

June 9, 1884. THE COURT. This was an action on the case against the township of Otto, to recover damages for injuries sustained by the plaintiff, and caused, as was alleged, by the negligence of the defendant. From the admitted facts of the case, it appears that on the evening of January 5, 1880, the plaintiff was walking along one of the public roads of said township, carrying a lighted lantern, and when in the vicinity of certain oil wells, an explosion of gas occurred by means of which the plaintiff was severely injured. At the place where the accident took place, a pipe, one or two inches in diameter, had been laid across the highway by one Patterson, to convey gas from his oil well, on one side of the road, to a well he was drill-location of the obstruction, must elapse before ing on the other side. This pipe had been in place about six weeks; in the centre, or travelled part of the road, it had been buried about one foot, but when it crossed the gutter, on either side of the road, it was exposed, and rested upon the bottom of the gutter. On the evening in question, about an hour before the accident occurred, a team had passed along at this point, and for some reason had deviated from the travelled portion; the wheels had come in contact with the exposed portion of the pipe in the gutter, causing a break thereof, and the escape of the gas. There was no evidence that the township authorities knew that the pipe had been laid across the road; the plaintiff lived about a quarter of a mile from the place of the accident,

the township can be held to constructive notice, and this is a question for the jury. (Fritsch v. City of Allegheny, 10 Norris, 226.) It would not do to apply the same rule to the supervisors of a large and sparsely settled township, where an obstruction had been placed upon a highway seldom travelled, that we would to the munici pal authorities of a city or borough, where such an obstruction would be likely to be brought to their knowledge speedily. The learned Judge thought that six or eight weeks was quite enough to "give the public authorities an opportunity to know whether or not a powerful agent is being transported across the highway so insecurely as to endanger life or limb of passers-by."

It has been held in some cases that much less

Negotiable instruments-Bills and notes-
Indorsement-Nonsuit.

A. executed a promissory note in the following form: Dorrance, February 23d, 1880. Six months after date, I promise to pay to the order of myself one hundred and ninety-two dollars at First National Bank at Hazleton, RENATUS HELLER;" and Pa., value received with use. indorsed, "I hereby certify that I own and am worth in personal and real estate in the county of Luzerne, State of Pa., $4000, over and above all indebtedness, and that the within obligation is given for goods bought by me of the Queen City Fertilizing Company, and the same is in full settlement of all claims and demands of every name of this obligation. and nature between said company and myself up to date RENATUS HELLER. Queen City Fertilizing Company, H. MORAN." B. took said note before maturity for value without notice of any defence. Upon a suit on the same by B. against A.: the note was not properly indorsed, and was not negotiable.

time was sufficient to charge the municipal au-
thorities with notice. Thus in Fritz v. City of Jan. '83, 388.
Allegheny, supra, where a dead horse had been
suffered to remain for twenty-four hours during
the hot weather of August, upon one of the
streets of the city, it was left to the jury to say,
whether under the circumstances of the case the
municipal authorities ought to have discovered"
and removed it within this time. But the facts
of that case bear no analogy to this. Here, we
have a small iron pipe, not over two inches in
diameter, buried out of sight under the travelled
portion of the road, and exposed only for the
short space necessary to cross the gutter. It was
lying upon the bottom of the gutter, and the
first rain might and probably would cover it with
dirt, so as to be scarcely perceptible to the passer-
by. It was not so patent and notorious" as to
be evident to all passers." That this is so is
conclusively shown by the fact that the plaintiff,
who lived within a quarter of a mile of it, and
had passed over the road, did not know the pipe
was there. If he did not know it, with what
grace can he allege the township authorities
ought to have known it, and charge them with
constructive notice? If Mr. Patterson had thrown
a dead horse in the highway, it would have been
a thing which every passer-by could not have
failed to see, and it is reasonable that it would
soon have been brought to the attention of the
supervisors; and if not, the care of the public
ways, which it is their duty to exercise, would
soon have discovered it. But here is a matter
of which they had no knowledge, which had not
been brought to their attention; which was not
calculated to attract their notice; and we are
asked to charge them with constructive notice
by a plaintiff who had far better means of obser-
vation, who lived close by, had passed over the
road, and did not see it.

Whatever remedy the plaintiff may have
against the person who placed the pipe there, he
has no cause of action against the township.
We are of opinion that the defendant's first
point should have been affirmed.
Judgment reversed.

Opinion by PAXSON, J.

J. H. M.

Held, that the Court could not say as matter of law that

Error to the Common Pleas of Luzerne County.

Assumpsit, by David M. Dunning, against Renatus Heller, upon a promissory note as follows:

"Postoffice, Dorrance Centre. County of Luzerne, State of Pa. Dorrance, Feb. 23d, 1880. Six months after date I promise to pay to the order of myself one hundred and ninety-two dollars at First National Bank at Hazleton, Pa., value received with use.

[Indorsed.]

RENATUS HEller."

"I hereby certify that I own and am worth in personal and real estate in the county of Luzerne, State of Pa., within obligation is given for goods bought by me of the $4000, over and above all indebtedness, and that the Queen City Fertilizing Company, and the same is in full settlement of all claims and demands of every name and nature between said company and myself up to date of this obligation.

RENATUS Heller.

QUEEN CITY FERTILIZING COMPANY,
H. MORAN."

Upon the trial, before WOODWARD, J., it appeared that the plaintiff was a bona fide holder of said note for value, the same having been accepted by him before maturity and without notice of any defence.

The Court entered a nonsuit, which the Court subsequently refused to take off, holding that the said note had not been indorsed, and therefore was not negotiable. The plaintiff took this writ, assigning for error the action of the Court in refusing to take off the nonsuit.

John McGahren (Garrick M. Harding with him), for plaintiff in error.

The note was properly indorsed, and that

which preceded the signature of Heller, did not | the other as an indorsement of negotiable affect the negotiability of the note.

Edwards on Bills and Notes, vol. I, pp. 386 and 400
(3d ed.).

Story on Promissory Notes, 121.
Zimmerman v. Anderson, 17 Smith, 422.
Ege v. Kyle, 2 Watts, 223.

Thorne v. Woodhull, 29 Ill. 92.
Chaworth v. Beech, 4 Vesey, 555.
Partridge v. Davis, 20 Verm. 499.
Upham v. Prince, 12 Mass. 14.
Myrick v. Hasey, 27 Me. 9.
Childs v. Davidson, 38 Ill. 438.

Heaton v. Hulbert, 3 Scam. (III.) 489.

Watson's Executors v. McLaren, 19 Wend. 557.
Tobey v. Chipman, 13 Allen (Mass.), 123.
Honore v. Dougherty, 4 Bibb (Ky.), 280.
Land v. Lacoste, 6 Miss. (5 How.) 471.

paper."

We do not think the words over the indorsement amount to a contract. They contain a statement as to the indorser's pecuniary responsibility and the consideration of the note. It was unnecessary and perhaps foolish for the maker to put all this over his signature as indorser. But he has done it, and as it does not vary his contract as maker and indorser, we are unable to say as a matter of law that the note was not indorsed as required by the commercial law. Nor was the learned Judge strictly accurate in saying that the signature cannot have a twofold force. The indorser may waive protest over his indorse

Harner v. Johnston, I Smed. & M. (Miss.) Ch. 563. ment, which manifestly gives a twofold character

Ayres v. Mitchell, 3 Smed. & M. 683.

Adams v. Blancan, 6 Robb (N. Y.), 334.
Ingham v. Vaden, 3 Humph. (Tenn.) 51.
Sargeant v. Sargeant, 18 Vt. 371.

Farrington v. Bank, 24 Barb. (N. Y.) 554.
Hubbard B. Payne, for defendant in error.
In order to constitute a valid indorsement of
a bill there must be a writing of the name of the
holder and a manual delivery by him of the bill,
with the intention not only to pass the property
in it, but to guarantee the payment.
Daniel on Negotiable Inst., 667.

to his signature, and affects the rights of the parties.

It was held in Ege v. Kyle (2 Watts, 222), that an indorsement on a negotiable note of a receipt on account of a quantity of iron, "the net proceeds of which are to be credited on the within," and which were afterwards credited on it by indorsement, did not destroy its negotiable character. The usual form of indorsement is by writing the name of the indorser across the back of the note. Where the note is

Denton v. Peters, 5 L. R. Q. B. 475 (23 L. T. payable to order, any order in writing is sufficient, N. S. 281).

April 30, 1883. THE COURT. The note in controversy was offered in evidence without objection on the part of defendant. This disposes of the argument based on the rule of Court and the affidavit of defence. Conceding the right of the defendant to demand proof of the signature, he waived it by allowing the note to go in without objection.

The learned Judge below, however, nonsuited the plaintiff for the reason that the note was not indorsed. It was made payable to the order of the maker. His name was written across the back of the note in the place where indorsements are usually placed. Over his signature, we find the following words :

"I hereby certify that I own and am worth in personal and real estate in the county of Luzerne, State of Pa., $4000 over and above all indebtedness, and that the within obligation is given for goods bought by me of the Queen City Fertilizing Company, and the same is in full settlement of all claims and demands of every name and nature between said company and myself up to the date of this obligation."

which shows an intent to pass the title. Thus "I give this note to A. George Chaworth" was held to be a sufficient indorsement. (Chaworth v. Beech, 4 Vesey, 555.) And where the indorsement is in the form of a guaranty, it has been held sufficient. (Partridge v. Davis, 20 Vermont, 499; Upham v. Prince, 12 Mass. 14; Myrich v. Hasey, 27 Me. 9; Childs v. Davidson, 38 Ill. 438; Watson v. McLaren, 19 Wend. 557.)

This disposes of the single point in the case. No other question is properly presented upan the record, and no other will be discussed. Judgment reversed, and a procedendo awarded. Opinion by PAXSON, J.

Jan. '84, 148.

H. J. S.

February 26, 1884.
County of Lackawanna v. Stevens.
Fees-Sheriffs-Luzerne County-Lackawanna
County Act of April 9, 1873-Act of June
12, 1878-Appeals-Practice.

riffs' fees in the county of Luzerne, being special in its pro-
The Act of April 9, 1873 (P. L. 583), regulating she-
visions, extends to all the territory then included within
the limits of the county. And, as this Act was not repealed
by the general fee-bill of June 12, 1878 (P. L. 188), fix-
ing the fees of officers in counties having a less number of
inhabitants than Luzerne, it follows that the fees of the
sheriff of Lackawanna County, when it was subsequently
by the local Act of 1873, although the number of the in-
erected out of Luzerne County, continued to be governed
habitants of the county brought it within the limits fixed
by the general law.

Debt, by the county of Lackawanna against | may be changed, we are led to conclude that the A. B. Stevens, defendant, to recover an alleged Act of 1873 is still in force in this county." excess in the amount of fees charged by defendant as sheriff for summoning jurors.