seers of the poor, a question would be presented which it is not necessary now to discuss. Certainly a husband, as between himself and his wife, cannot be said to have separated himself from her without reasonable cause, when she has by deed placed him under legal obligation “not to visit her, or to enter any house where she may happen to be," and "to permit her to live separate from him," and to carry on business on her own account as if she were a feme sole. If a proper provision has been made for a wife, her husband is not liable even for necessaries furnished for her support, (Cany v. Patton, 2 Ashm. 140; Alley v. Winn, 134 Mass. 77;) and a party dealing with a married woman, known to be living apart from her husband, is put upon inquiry as to the cause of the separation. If this be so, for much stronger reasons will the husband, under such circumstances, be relieved from a criminal prosecution, instituted by the wife herself, to obtain an order for her maintenarce. If the deed of separation was fraudulently procured and the terms were unreasonable, or if after its execution it had become null and void by the acts of the parties, these facts should have been shown; but, standing upon the deed alone, the conviction was unwarranted by the proofs, and must be set aside. The judgment is therefore reversed, and a procedendo awarded.

In an action for injuries caused by the falling of a wall erected by defendant, as an independent contractor, where it appears that defendant accepted the wall from a subcontractor with knowledge of its condition, and there is evidence that such condition was then so defective as that it caused the injuries, and defendant's own servants did certain work which it is alleged caused the defect in the wall, the question whether defendant's liability was shifted to the subcontractor should be submitted to the jury, and it is error to direct a verdict for him.

Appeal from court of common pleas, Allegheny county; STOWE, Judge.

Action by Alexander Berberich against John Ebach and Sophie, his wife, and others, for injuries to plaintiff's property caused by the falling of a wall erected on defendant Sophie Ebach's premises by the defendants Theodore and Albert Striebecher, as contractors. The court directed a verdict for defendants, and gave judgment on the verdict, and plaintiff appeals.

A. M. Brown and R. B. Petty, for appellant. A. E. Weger and John S. Ferguson, for appellees.

GREEN, J. In the case of Gas Co. v. Lynch, 118 Pa. St. 362, 12 Atl. Rep. 435, we said: "The case was thus made to turn upon the acceptance by the company of work so negligently and improperly done that the company knew, or ought to have known, that it

In

was unsafe and positively dangerous. To such a submission there could be no possible | objection, if there was any evidence from which the jury were warranted in finding that the work had been accepted by the company and taken off the hands of the contractor." In that case there was no question that the work had been done by an independent contractor, and that it was his negligence that caused the injury complained of. Had there been any evidence showing that the gas company had accepted the work of its contractor with a knowledge of imperfections or defects which produced the plaintiff's injuries, the company would have been held liable, although the work was done by one who was clearly an independent contractor, having exclusive control of the work. the present case it was alleged, and there was ample evidence to sustain the allegation, that the stone wall on which the brick wall of the building was erected, was so defectively constructed that it caused the brick wall to fall and damage the plaintiff's building. The defendants Ebach were relieved of responsibility by their contract with the builders, Striebecher, and the builders claimed to be relieved by the application of the same doctrine to their subcontract with Grow, the mason who laid up the stone wall. That subcontract is a very meager one. It is all contained in the following words: "M.Striebecher & Brother: I promise that I will do the mason and stonecutting work for Mr. Ebach's house, according to plan and specifications, for the sum of four hundred and ninety-eight dollars, ($498.) AMMOND GROW." It may be gravely questioned whether this is such a subcontract as takes away from the principal contractor the whole supervision and control of the mason and stone-cutting work, upon which a high brick wall was to be erected by the principal contractor, but as that question is not necessarily now before us, and has not been considered or argued, we express no opinion upon it. But on the question of the acceptance of the stone wall by the principal contractor in such circumstances as that he must, or may be presumed to, have knowledge of its defects, we think there was sufficient testimony to submit to the jury. substance of the testimony was that the bulging of the stone wall, and forcing it back to its place, caused the brick wall to fall, or at least that it constituted such a defect in the stone wall as to make it quite unsafe to erect a brick wall on top of it. The bulging of the stone wall was attributed directly by different witnesses to the filling in of earth and stones behind it, followed by warm weather, which caused the mortar to soften, and thus bulge the wall out of position. Now, this filling in was no part of the work to be done by the mason, and in point of fact it was done by Striebecher's men. This was testified to by Grow and Striebecher, who were witnesses for the defendants, and was very clearly established. In addition to this, however, it was most distinctly proven that

The

Striebecher knew all about the condition of the stone wall when he directed the laying of the joists and the erection of the brick wall. Grow, defendants' own witness, testified: "Mr. Striebecher came to me, and he says; There is a piece of wall that is crooked, and the architect won't allow me to lay the brick upon it, and what would we do about it.' I went down and stretched a line, and it was about twenty-five feet long and about two and one-half feet high. This just went down to the cellar a little; and I told Striebecher I says: Just wait a day or two, the weather will get soft again, and the wall will come back again.' And so he says: Do you think it will?' I says: Yes." Albert Striebecher, one of the defendants, testified as follows: "Question. Your attention was called to this stone-work before you put the joist on, wasn't it? Answer. I seen it myself. Q. Your carpenters saw it before you came there? A. Not my carpenters; I seen it myself. Q. Didn't you go there because your carpenters stopped work on it? A. No, sir; I sent my men, and they did start the joist. I says: • Better wait till I come back. I will see the architect before we put the joist down, if he is satisfied to put the wall on it.' * * ** Didn't you tell Schuetzinger that wall would have to come down? A. If he couldn't get it straight, it will have to come down; couldn't leave it bulged, and build a house on it. Q. He did straighten the wall? A. Yes, sir. Q. What caused the wall to bulge out? A. Well, it was braced, and they went to work and filled in the wall with dirt in the back. Q. Filled in back of the wall with dirt? A. Yes, sir. Q. Who did that? A. Mr. Grow had two men of mine,-two laboring men, and 1 left several, so they always could dig a little,-might need it in the foundation; and so afterwards they filled in. Q. Those laboring men of yours filled in behind the wall? A. Yes, sir. Q. And that caused the wall to bulge out? A. Yes, sir. Q. Didn't that wall bulge out nearly the whole length of the wall, but more in the place where he braced❘ it back? A. No, not all along. Q. How many feet of it bulged out? A. About twenty-five feet or so. Q. How much of it did he push back? 4. He pushed it all back. Q. Pushed the whole twenty-five feet back? A. Yes, sir. Q. Did the braces extend along the whole twenty-five feet? A. Yes, sir; he had them braced, and after You know it was wintertime. Q. And then he used crow-bars, didn't he? A. He braced it back; put the braces against it, and took the dirt out, and so it went back. I didn't stay there. Q. You knew it was being done? A. Yes, sir."

As a matter of course, this testimony proves conclusively that the Striebechers knew all all about the condition of the wall; and, more, they knew of, and were satisfied with, the measures that were taken to remedy the defect, approved of them, and accepted the wall, and proceeded to lay the joists, and erect the brick wall on top of it. Both Grow and Striebecher thought the bracing of the wall was v.18A.no.28-64

sufficient to restore it, and make it sufficient for the brick wall, but there were plenty of witnesses who thought otherwise, and so testified, and the question raised by this testimony was a pure question of fact for the exclusive consideration of the jury. The question whether the Striebechers were liable for the injury done was largely a question whether a responsibility which rested prima facie upon them was shifted over to others. The learned court below thought that it was conclusively shifted by the testimony, and therefore directed a verdict for the defendants. In this we think there was error, for the reasons we have stated. In the case of Allen v. Willard, 57 Pa. St. 374, there was a very similar situation. The principal contractors were sued as well as the owners. The injury was occasioned by one falling into an excavation in the sidewalk made for a building which was being erected. The owners were held not to be liable, as the builders were independent contractors, but they in turn sought to shift the responsibility upon a subcontractor who did the excavating. We held the evidence was not sufficient for that purpose, and that the principal contractor was liable. AGNEW, J., in delivering the opinion, said: “As to the excavation, Samuel Sloan testified, and this was all he said: I did the excavating for this building under a contract with Allen & Bros.; I did the whole of it.' Not a word was asked of these witnesses as to the terms of their contracts, or how they were to do the work,-whether under the control and direction of the Allens or otherwise. The fact that each had a contract with the Allens for his particular work did not, in itself, separate the Allens from its supervision and control. To pay for stone-work by the perch, or to do the whole excavation under a contract, does not necessarily destroy the relation of master and servant. In the case of Homan v. Stanley, 66 Pa. St. 464, which was also a case of injuries received from falling into an excavation for a cellar or a sidewalk, we said, (READ, J.:) "The owner is undoubtedly, legally and morally, liable for such negligence, unless he can shift the responsibility clearly upon some one else, and this is necessary for the safety of our fellow-citizens, particularly in populous places. In the present case he has not shifted the responsibility, and he is therefore liable." In this case the plaintiff, without any fault of his, has sustained serious damage by the falling of the wall of a building in course of erection. The owner successfully escapes liability on the ground that the work was being done by an independent contractor. That contractor, who undoubtedly erected the wall that fell, seeks also to escape liability by shifting it over upon some one else who he claims was a subcontractor. But, as we have seen, he accepted the work of that subcontractor, knowing well its condition; and it is alleged, and much proof was given on the trial tending to show, that the work thus accepted was so defectively done as that it caused the injury complained of

"

(Supreme Court of Pennsylvania. Jan. 6, 1890.) PLEDGE-CONVERSION-EVIDENCE-ABANDONMENT.

1. In an action for conversion of railroad bonds, bought by plaintiffs' decedent subject to a pledge to defendant, the president of the railroad company, and left in his hands, evidence that defendant had incurred expenses in repairing the road is relevant, by way of recoupment, where it appears that the road was generally considered worthless, and that the amount realized for the bonds was largely due to such repairs.

2. Evidence that defendant incurred expenses in defending an action against the railroad company under apprehension that the lien of the bonds would be divested thereby, and after refusal by plaintiffs to advance money for such expenses, plaintiffs saying that they considered the bonds of no account, is admissible, in order to make such expenses a charge on the bonds.

8. Such evidence is also admissible to show an

fendant proposes to show that, in 1877, an action was brought against the Lawrenceville & Evergreen Railroad Company, on a contractor's claim, and that defendant, being apprehensive that an execution upon that judgment would divest the lien of the bonds and mortgage in question here, being interest in those bonds, went to see Mr. Reynolds' executors, in order that they might, with him, protect the securities as against this claim; and that he was told that they considered the bonds of no account, and that they would not advance money to protect thein; and that after such action on the part of the executors defendant employed counsel to protect the securities against the claim, and paid the fees, and finally paid the claim itself. This for the purpose—First, of establishing the right of defendant to a charge upon the securities for the amount of that expenditure; and, secondly, for the purpose of showing an abandonment on the part of plaintiffs of any interest in the securities in question. Third. The court erred in sustaining the objections to and excluding the evidence proposed by defendant under the following offer, to-wit: Counsel for defendant proposes to prove that in 1880, a flood having washed away the tracks, road-bed, and ap

in the bonds.

4. Mere lapse of time, without offering to redeem, but also without circumstances of equitable estoppel, is no bar to plaintiffs' rights.

5. Leaving a pledge in the hands of the pledgee, with no offer to redeem, where there is no demand for payment by the pledgee, is not sufficient evidence of abandonment to justify submitting that question to the jury.

Appeal from court of common pleas, Allegheny county; E. H. STOWE, Judge.

Action by Hannah Reynolds and William Walton, executors of Samuel Reynolds, deceased, against Matthew Cridge, for the alleged conversion of certain railroad bonds, which were bought by a third person for plaintiffs' decedent, as they averred, and taken subject to a pledge to defendant, and left in his hands. Defendant was at the time of the alleged purchase, which was in 1874, president of the railroad company which issued the bonds. On December 11, 1881, defendant delivered the bonds to one A. G. Hatry, under an agreement that they should be redelivered to himself if he should ever be legally called on to account for them. Verdict and judgment for plaintiffs, and defendant appeals. Following are, in substance, his first six assignments of error:

First. The court erred in overruling defendant's objection to the following offer of evidence on the part of plaintiffs, to-wit: Plaintiffs' counsel offers exhibit No. 6 in evidence. Objected to as incompetent and irrelevant, the non-production of the original not being sufficiently accounted for. Objection overruled. Bill sealed for defendant. Second. The court erred in excluding the evidence proposed to be given by defendant under the following offer: Counsel for the de

green Railway Company, the same was left in such condition as to be worth considerably less than the amount of the bonds and mortgages in question, and that the witness, for the preservation of the securities, expended about $5,500 in restoring the different portions of the road to their places, and in rebuilding the road. This for the purpose of showing the amount by way of recoupment against any claim of the plaintiffs; to be followed by evidence in support of this offer that any value the security in question had, or the road had, at the time of the agreement of April 11, 1881, with Hatry, was by reason of this expenditure of money. Fourth. The court erred in refusing defendant's second point, which was as follows, viz.: "The court is requested to charge the jury that if they find that in December, 1874, Samuel Reynolds became the owner of the bonds in question in this case, subject to the claim and interest of Matthew Cridge thereon and therein, and that during his life-time he did not, at any time, tender or offer to pay the debt due Cridge for which they were pledged, or give said Cridge any notice of his interest in said bonds, or assert in any way any interest or claim therein; and that after his death his executors never offered to pay said Cridge said debt, or demanded said bonds; and that after the washing away of the railway, in 1880, they still made no tender to said Cridge of the debt due to him,-then the jury may presume an abandonment or relinquishment on the part of the plaintiffs and their testator of any interest in the bonds in question, and on that presumption find for the defendant." Fifth. The court erred in refusing

defendant's third point, which was as follows: "The court is requested to charge the jury that the debt to Cridge, for which the bonds in question were pledged, became due and payable in 1874; and, if the jury find that neither the plaintiffs nor their testator made any offer or attempt to redeem the pledge during nearly seven years thereafter, then plaintiffs cannot recover. Sixth. The court erred in refusing defendant's fourth point, which was as follows, viz.: "The court is requested to charge the jury that the debt to Cridge for which the bonds were pledged became due and payable in 1874; and if the jury find that neither the plaintiffs nor their testator ever made any offer or attempt to redeem the pledge, and brought this suit in 1887 without such offer or attempt to redeem, and without any demand for said bonds, then the plaintiffs cannot recover; they cannot escape the consequences of their own laches, because it now turns out that Cridge parted with the bonds in 1881."

John S. Ferguson and Henry A. Davis, for appellant. A. & A. M. Blakeley, for appellees.

MITCHELL, J. The first assignment of error not being according to rule, neither the paper itself, nor the evidence on which it was admitted, as a copy, being set out, we must treat it as abandoned.

The offers in the second and third assignments were certainly relevant on the subject of the expenses incurred by defendant in saving to the collaterals a large part if not the whole value they had at the time of the alleged conversion. It appears from all the evidence, and especially that of Judge MAGEE, that the road was generally considered worthless, and that the amount realized for its stock and property in 1881 was largely, if not entirely, based on the reconstruction, by means of defendant's advances, after the flood of 1880. It would seem apparent that the value of plaintiffs' bonds must have been enhanced by the same cause, and plaintiffs should in equity contribute their rateable proportion to the expenditure which produced such result. Whether the costs of defending against the contractor's claim in the suit of April, 1877, were a proper charge against the bonds is not so clear, as we do not understand the offer in the second assignment to be to show that a sale under a judgment in that suit would in fact divest the lien of the mortgage and bonds, but only that there was ground to apprehend that it would do so. The witness was certainly not competent to prove by parol the object or the legal effect of that suit, but a reasonable apprehension of danger may be sufficient to justify a trustee in incurring expenses to preserve the trust property, though it turn out that the danger was not actual. The validity of the charge for such expenditure must be determined by the circumstances as they appeared at the time, and these the defendant was entitled to show.

The offer in the second assignment was also relevant and competent on the question of abandonment of plaintiffs' interest in the bonds. That an executor may abandon property pledged, or subject to assessment, if there is no value over the debt or the assessment to be preserved for the estate, was ruled by Chief Justice SHAW in Ripley v. Sampson, 10 Pick. 373. Such result or intention will not be lightly inferred, but the offer was of testimony tending to support it, and should have been received.

The fourth, fifth, and sixth assignments are not sustained. Merely leaving a pledge in the hands of the pledgee with no offer to redeem, but also with no demand by the creditor for payment, is not of itself enough to justify submitting the question of abandonment to a jury. Nor is the lapse of time a bar to the plaintiffs, in the absence of circumstances of equitable estoppel, such as existed in Waterman v. Brown, 31 Pa. St. 163, and the cases cited from 55 Ill. 468, (Adams v. Sturges;) and 96 U. S. 611, (Hayward v. Bank.) The other assignments do not seem to require particular notice. Judgment reversed, and venire de novo awarded.

(131 Pa. St. 125) HART v. H. C. FRICK COKE CO. (Supreme Court of Pennsylvania. Jan. 6, 1890.) MASTER AND Servant.

Plaintiff, employed as engineer in defendant's coal mine, was injured while descending a coal chute, over which cleats had been nailed, through his foot slipping off of one of the cleats. Plaintiff testified that he had suggested to defendant's superintendent that until a good stairway, in contemplation, could be put up, a temporary arrangement could be rigged up the chute. Other witnesses testified that plaintiff had requested that the cleats be nailed on the chute. Held that, there being no proof of a defect in construction, nor negligence on the part of defendant, plaintiff could not recover.

Certiorari to court of common pleas, Allegheny county.

Action by John Hart against the H. C. Frick Coke Company, for personal injuries. Plaintiff was employed to operate an engine used for operating the machinery in one of defendant's mines. The engine was on a lower level than the machinery; and in going to see to the machinery, as was his duty, plaintiff was in the habit of ascending along a way made by putting cleats over a coal chute. Plaintiff was injured while descending this chute, through his foot slipping off one of the cleats. Judgment was given for plaintiff, and defendant appeals.

and in the manner directed by, the plaintiff himself, he cannot recover for any injury from the use of them; there being no proof of a defect in the construction, nor negligence on the part of defendant in the care of them. Answer. The second point is refused. I do not understand the evidence on that point to be uncontradicted. I understood the plaintiff himself to deny it. If the fact be as stated in the point, the verdict should be for the defendant.'" The fact was as stated in the point. Mr. Call, Mr. Grindell, and Henry Johnson testify distinctly that the cleats were nailed on the chute at the request of the plaintiff, to enable him to go up and down more easily. All this, perhaps, would not have justified the affirmance of the point, as what the witnesses said was for the jury; but when we turn to the plaintiff's own testimony we find the following: "Question. What facilities were there for getting up to the tipple when you first took charge of the engines? Answer. When I first took charge of the engines, there were cleats nailed across the upright posts of the trestle-work. At the upper end of the works they had a trestle-work to climb up. Them cleats, I suppose, were from 24 to 30 inches apart. It was very difficult to get up there. I had talked about that. It was a very bad place to go up. Q. Was there any change made, and, if so, what was said and done? A. Some time after that,-I could not say the time,-William Muller, assistant superintendent, came to me, and asked me if there was some place that they could put up a temporary way to get up; that, as soon as they catched up with their work, they would put a pair of good stairs there. Q. Was any temporary arrangement put up, and, if so, what was it? A. I told Mr. Miller I thought there could be a temporary arrangement put up the boiler chute, running up from the boiler chute to the trestle-work, and he agreed to do it, and the carpenters went to work, and nailed cleats on the boiler chute up, suppose, twenty-five feet, and then there was a ladder run from that up to the top of the trestle." This renders it perfectly clear that the cleats were nailed on, not only with the knowledge of the plaintiff, but at his request. It was a plan of his own contriving. If it was dangerous, he knew its danger; and, even if we are mistaken in the fact that the plaintiff requested and suggested the arrangement, the danger of using it was patent. He was not obliged to go up and down there, as there was another and safe way provided, though not, perhaps, as convenient. In any view of the case, the plaintiff was not entitled to recover. Judgment reversed.

131 Pa. St. 143)

COLLINS v. CHARTIERS VAL. GAS Co.
OSBON v. Same.

(Supreme Court of Pennsylvania. Jan. 6, 1890.) WATER-COURSES-POLLUTION-UNDER-Ground CURRENTS.

One who, while boring for gas on his own land, strikes the fresh-water veins which supply

the wells of another, and a little lower down strikes veins of salt water, which water rises and mingles the injury, where it is made to appear that the inwith the fresh, destroying the wells, is liable for jury was plainly to be anticipated, and preventable by the outlay of a small amount of money.

Appeal from court of common pleas, Allegheny county.

Action by Nannie R. Collins against the Chartiers Valley Gas Company, and also by Mary L. Osbon against the same defendant, for polluting plaintiffs' wells. On trial the court directed verdicts for defendant, and from the judgments entered thereon plaintiffs appeal.

S. M. Trent and Jas. S. Young, for appellants. Kennedy & Doty, for appellee.

MITCHELL, J. The dividing line between the right to use one's own, and the duty not to injure another's, is one of great nicety and importance, and frequently of difficulty. The Pennsylvania decisions have endeavored with unusual care to preserve the substance of both rights, as far as their sometimes inevitable conflict may permit. With regard to the use and control of flowing water and of water-courses, the case of Coal Co. v. Sanderson, 113 Pa. St. 126, 6 Atl. Rep. 453, definitively settled the rule that for unavoidable damage to another's land, in the lawful use of one's own, no action can be maintained. No other result seems possible, without restricting the uses, derogating from the full enjoyment, and diminishing the value of property. But the rule does not go beyond proper use and unavoidable damage. It is thus clearly expressed in the opinion of our Brother CLARK: "Every man has the right to the natural use and enjoyment of his own property; and if, while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria." 113 Pa. St. 146, 6 Atl. Rep. 457. That this is the rule as to surface streams was conceded by the defendants below; but they contended that as to subterranean waters, or at least as to percolations and hidden streams, an owner was not bound to pay any attention to the effect of his operations within his own land upon the land of others. The learned judge below, though seeing and expressing the force of the reasons for a uniform rule applicable to both classes of waters, felt himself so far constrained by adjudicated cases that he directed a verdict for the defendant. We have therefore to examine the cases to see what the true distinction is between surface, or visible, and subterranean waters, and whether different principles are applicable to the rights in them, respectively, or the same principle, with only such modifications as may be necessary in practical application.

In Wheatley v. Baugh, 25 Pa. St. 528, the plaintiff had a spring upon his property, which he had used in his tannery for more than 21 years, when defendant opened a mine on his adjacent land, and put in a steam-pump to take out the water, with the