$100 per day, have been the liquidated damages for the violation of the covenant? Yet the sum named here is payable for the breach of any one, even the least, of these covenants. There is nothing in the nature of the contract or the circumstances attending it, which points to an intent of the parties to treat this sum other than what they call it,a penalty.

He

While there is much variance in the authorities on this question, the equities of the particular case often determining the construction put upon the language, nevertheless the defendant has shown no equity which should move a court in his favor. first sold out his property and practice for a large sum to Dr. Hise, and Wilkinson bought from Hise. Then defendant resumed practice. Then again, by the most explicit agreement in writing, he sold to Wilkinson, and deliberately violated his covenants, to the manifest injury of Wilkinson; and on his own showing he did this because it paid him better to break his contract than to keep it. The equities of the case, therefore, are all with the plaintiff. We hold that the $400 stipulated here is a penalty only. The contradictory parol evidence is without significance, in view of the plain terms of the contract, and the circumstances surrounding the parties when they entered into it. We do not attempt to reconcile It, because the contract itself is not ambiguous, and the circumstances under which it was made are undisputed. These are the controlling facts in settling its interpretation.

As to the second proposition held by the learned judge,-that plaintiff has an adequate remedy at law,-his decision is grounded mainly on the interpretation that the contract stipulates for liquidated damages. As we do not concur with him in this view, the question remains whether, treating it as a penalty, in equity the plaintiff is entitled to a specific performance of the contract. That plaintiff could maintain an action at law for damages for breach of the contract there is no doubt. But it is a well-settled rule that, although the action at law will lie, yet if there is an utter uncertainty in any calculation of damages from the breach of the covenants, and the measure of damages is largely conjectural, equity will intervene because of the inadequacy of the remedy. The plaintiff claims damages to the amount of $100 per month up to the hearing of the case before the master, and offered evidence to establish this claim. But there was no full hearing on the merits of this branch of the case, nor any finding of fact by the master, and we pass no opinion on this evidence. It remains open for further proceedings in the court below to determine the amount of damages sustained by plaintiff between the return of defendant to Lehman Centre and the issuing of this injunction. We only determine that from the very nature of this contract an action at law is a wholly inade

quate remedy for its persistent violation during the 10 years, and therefore equity will specifically enforce performance of it by injunction. Palmer v. Graham, 1 Pars. Eq. Cas. 476. Therefore the decree of the court below dismissing the bill is reversed, at costs of appellee, and the bill reinstated. It is further ordered that an injunction issue, directed to defendant, restraining him from practicing as a physician at Lehman Centre, and within eight miles thereof, until the 6th day of February, 1898, and from facturing or putting on sale any medical preparation during the same time.

WESTMORELAND COUNTY v. NELSON et al.

(Supreme Court of Pennsylvania. Oct. 15, 1894.) COUNTIES-CONTRACTS FOR BRIDGES-JOINT COUNTY BRIDGES.

Act April 4, 1870, requiring the commissioners of certain named counties to let contracts for the erection of bridges to the lowest bidder, does not apply to contracts for the erection of joint county bridges.

Appeal from court of common pleas, Westmoreland county; Doty, Judge.

Appeal by the county of Westmoreland from a decree confirming a report of viewers appointed to inspect a bridge erected by Nelson & Buchanan. Affirmed.

The following is the opinion of the court below: "On the 28th of December, 1893, the commissioners of the counties of Westmoreland and Indiana entered into a contract for the erection of a joint county bridge over the Conemaugh river at Bolivar. The contractors, Nelson & Buchanan, completed the bridge, according to the report of the viewers, 'in a substantial and workmanlike manner.' Objection is made, to the approval of the report of the viewers, that the contract was illegally entered into by the commissioners of the county of Westmoreland. This objection is based on the provisions of the special act of assembly of the 4th of April, 1870 (P. L. 834). The act provided that the commissioners, before entering into any contract for the erection of any new building or bridge, or for the alteration of the same, should invite sealed proposals by public advertisement, and award the contract to the lowest bidder. The act also provides that any such contract should be approved by the court, with the sureties for the faithful performance. In this instance sealed proposals were not invited by advertisement or otherwise, and the contract was awarded without the approval of any judge of the court of common pleas. In other words, there was no attempt to observe the provisions of the act of the 4th of April, 1870, the commissioners contending that the act has no application to a contract entered into with another county for the erection of a joint county bridge. Provision is made for the erection

Appeal from court of common pleas, Venango county.

Scire facias by the city of Oil City, to use of M. Murray, against William L. Lay, on a municipal lien for street improvements. There was a judgment for plaintiff, from which defendant appeals. Affirmed.

The legal plaintiff is a city of the third class, under the act of May 23, 1874, and now governed by the act of May 23, 1889. The equitable plaintiff is a contractor under said city. The basis of the claim herein is an assessment for the paving of a portion of Front street, in said city, amounting to $401.32, made by authority of Ordinance No. 386 of said city, entitled "An ordinance providing for the paving of Front street from the west side of Central avenue to the west side of State street," approved July 31, 1893. A municipal lien for said assessment was entered, and scire facias issued thereon, whereupon defendant filed an affidavit of defense, in which it was alleged that the assessment was void for three reasons, as follow:

(1) That said ordinance was invalid because it had been passed in response to and in compliance with a petition of eight property holders on said street, and there had been an utter disregard of the provisions of section 26, art. 15, of the said act of May 23, 1889 (P. L. 325), requiring, in such cases, five days' notice of the improvement prayed for, and the names of the petitioners therefor, to be given in one newspaper of the city before the passage of the ordinance; no such notice having at any time been given.

(2) That the ordinance was invalid because of the violation, in its passage, of section 2, art. 4, of said act of 1889 (P. L. 282), which prohibits the passage of any ordinance except by bill, and also prohibits the consideration of any bill unless referred to a joint or separate committee, returned therefrom, and printed for the use of the members. The affidavit alleged that the bill was never referred to any committee, and that it was not printed until after it had passed its first and second readings in the common council.

(3) That the assessment was invalid because the amount assessed included the cost of regrading said portion of said street in addition to the cost of paving, the affidavit affirming that the said street had been graded at a previous period, and the cost assessed upon the abutting property; that defendant had then paid the amount assessed for said grading upon the property now sought to be charged in this action; that, under cover of paving said street, the grade had been raised in some places more than a foot.

On motion of plaintiff a rule on defendant was granted to show cause why judgment should not be entered for want of a sufficient affidavit of defense, which rule, on argument, was made absolute, the court filing no opinion. Act May 23, 1889, art. 5, § 3, cl. 10, provides that cities of the third class shall have the right to enact ordinances requiring the

paving, etc., of streets, at the expense of the owners of property abutting thereon, (1) upon petition signed by a majority of the owners of lands abutting on the street, or signed by the persons owning a majority of the feet front on said street; or (2) without petition, when the ordinance is passed by a vote of two-thirds of all the members of each branch of councils.

F. W. Hays, for appellant. Isaac Ash and P. M. Speer, for appellee.

PER CURIAM. We are satisfied, from an examination of the record, that there was no error in entering judgment against the defendant for want of a sufficient affidavit of defense. For aught that sufficiently appears in the defendant's affidavit, the ordinance under which the curbing and paving were done, and lien therefor filed, was valid and binding, and the plaintiff should be permitted to collect the amount thereof. Judg ment affirmed.

MERCHANTS' & MANUFACTURERS' NAT. BANK OF PITTSBURG v. BAEDER GLUE CO. et al. (KERN, Garnishee). (Supreme Court of Pennsylvania. Oct. 1, 1894.)

GARNISHMENT-COLLATERALS IN ANOTHER STATE -RELEASE BY DEBTOR.

1. A court has jurisdiction to render judgment against a garnishee for any surplus arising from the sale of collaterals held by him in another state.

2. An attaching creditor can compel a garnishee to account for collaterals held by him, though the attachment debtor had released all claims against him.

3. A garnishee must account to attaching creditors for moneys paid him in settlement of a prosecution by him of a third party for embezzlement of funds belonging to the attachment debtor.

Mitchell, J., dissenting.

Appeal from court of common pleas, Philadelphia county.

Action by Merchants' & Manufacturers' National Bank of Pittsburg against the Baeder Glue Company and others. William H. Kern was summoned as garnishee. There was judgment against the garnishee, from which he appeals. Affirmed.

B. Gilpin and John G. Johnson, for appellant. Henry C. Todd and M. Hampton Todd, for appellee.

WILLIAMS, J. The plaintiff bank was a judgment creditor of the Baeder Glue Company. It caused an attachment execution to be issued upon its judgment, and summoned William H. Kern, among others, as a garnishee. He pleaded "nulla bona," and a trial was had upon the issue so raised. The question presented by this issue and actually tried in the court below was whether Kern was indebted to the glue company. or had in his possession any of its property for

which he was liable to account. It appeared from the evidence that he had a large demand against the company, and had received property belonging to it as collateral security for this demand. The principal item of the property so received by him was a warehouse receipt for about 2,200 barrels of glue, stored in the city of New York. He sold the glue for $24,000 to one who within a few days sold it for $32,000. Three questions were presented upon these facts: these facts: First. What was the true amount of the demand held by Kern against the glue company? Second. What amount amount had he received from the company in securities, or from the sale of collaterals, which was applicable to the payment of the debt due him? Third. Did the sums so received by him satisfy his just demands against the company, and leave a balance in his hands for which he ought to account? If so, what was the amount of such balance? These were questions of fact to be determined by the jury upon the evidence, and the learned trial judge submitted them in an impartial charge, and with proper instructions. The verdict is a final disposition of them. But some questions are now raised that do not seem to have figured at the trial, and are pressed with great earnestness as reasons for a reversal of this judgment. Among these is that of the power of a court in this state to seize or exercise jurisdiction over property actually situated in another state. We do not understand that any such power was exercised or asserted by the court below. There was no attempt at seizure of the glue stored in the city of New York, no service on or notice to the warehouseman. It was the money in the pockets of the garnishee arising from the sale of collaterals held by him. and his own bona fides in making such sales, that the attaching creditor, standing in the shoes of his debtor, had a right to inquire into. The glue company could, and in the light of the verdict it is proper to say that it did, waive or surrender its right to require an account from William H. Kern; but, if this was collusively done, it did not bind the creditors of the company. The holder of collateral securities is not bound to obtain the highest possible price for them, but he is bound to the exercise of common business prudence and of good faith in his management and conversion of them. His debtor may acquiesce in and assent to his fraudulent conduct for himself, but he cannot bind his creditors by such acquiescence or consent. They have a right to demand what he ought in good conscience to demand,-an account from his creditor for the collaterals placed in his hands. This disposes of the sixth, seventh, eighth, ninth, tenth, and eleventh ssignments of error.

The admission of the testimony of Nagle 1 Pearce is complained of in the third, "th, and fifth assignments. This testiy was offered as bearing upon the good

faith of William H. Kern in dealing with the warehouse certificates, and as tending to show collusion between him and his son, who was an officer and stockholder in the Baeder Glue Company, for the purpose of covering the assets of the company, and placing them beyond the reach of creditors. We think it was competent for this purpose, and the errors assigned to its admission are overruled.

Nor can we assent to the proposition made in the ninth head of the argument for the appellant,-that there was no evidence that justified the submission to the jury of the liability of William H. Kern to account for the sum of $3,850. paid through Hood Gilpin. This money was paid by L. C. Haughey, to relieve himself from a criminal prosecution for the embezzlement of moneys belonging to the Baeder Glue Company. Howard R. Kern was the prosecutor, acting in behalf of the company. A settlement was made with him, and the prosecution discontinued by his leave. The presumption is that what he did as prosecutor he did on behalf of the company he represented. He had no right to sacrifice the company or its just claims for his own private advantage; and if he was base enough to engage to do so, or to permit the prosecution for the embezzlement of the money of the company to be discontinued in consideration of a bribe paid to him as an individual, he ought not to be heard to allege his own turpitude. The money paid should go where it of right ought to go, to the party whose money was embezzled, and whose officer conducted the prosecution.

Where the owner of adjacent lots conveys one by a deed providing that the grantee or his assigns should never erect buildings thereon within a certain distance of the street, the restriction runs with the land, and a grantee of the adjacent lots may enjoin its violation.

Appeal from court of common pleas, Philadelphia county.

Bill for an injunction by Emma Muzzarelli against A. H. Hulshizer and others. The court below refused a preliminary injunction, and plaintiff appeals. Reversed.

J. Howard Gendall, for appellant. Joseph L. Tull, for appellees.

STERRETT, C. J. This appeal is from the refusal to grant a preliminary injunction restraining defendants from violating the

building restriction contained in the deed, hereinafter referred to, under which they derive title. So far as they are material to the question involved in this contention, the facts are sufficiently stated in the bill. In 1830, Mrs. Elizabeth B. Sergeant owned three adjoining lots, each fronting 20 feet and 4 inches on the west side of North Ninth street, Philadelphia, and extending back, preserving same width, about 116 feet, now numbered respectively 252, 254, and 256, on which it is alleged that three houses were then about being erected. On December 21st of that year, by three separate deeds, of same date, Mrs. Sergeant conveyed said lots to different persons, reserving a ground rent. Each deed was therefore signed and sealed by the purchaser. In each the description of the lot conveyed referred to the adjoining lot or lots as "intended to be this day granted by the said Elizabeth B. Sergeant" to the purchaser of such adjoining lot. The middle or central lot, now owned by the defendants, and numbered 254, was thus conveyed to William C. Hough, who signed and sealed the deed therefor. That deed contains, at the end thereof, but above his signature and seal, the following clause: "It is further understood, conditioned, and agreed by and between the said parties hereto that the said William G. Hough, his heirs and assigns, shall not nor will at any time hereafter erect or build on the said hereby-granted lot any building or part of a building further westward than thirtyseven feet from the line of Ninth street, except a privy and bath house, not exceeding six feet in depth and sixteen feet in height, from the lower floor of the house, now erecting on the said lot, to the eave of said bath house." By deed of same date, as above stated, lot No. 252, now belonging to plaintiff, was conveyed by same grantor.

In

that deed no reference, in express terms, is made to said building restriction, but the lot conveyed is described in part as bounded "northward partly by a lot of ground intended to be this day granted by the said Elizabeth B. Sergeant to William G. Hough on ground rent." In like manner her deed to Mr. Hough describes the lot conveyed to him as bounded on the south by property intended to be granted to David R. Knight, through whom plaintiff derives her title. By similar deed, of same date, lot No. 256 was conveyed to John C. Davis. These deeds, all of same date, were duly recorded, etc. It is conceded by defendants that they have commenced and intend to erect an addition to their front building which will extend further westward than 37 feet from the line of Ninth street; but they deny that their lot is subject to any building restriction in favor of plaintiff's lot. On the other hand, it is claimed by plaintiff that the building restriction above quoted is in the nature of a covenant running with the land, and was intended to create, and did create, an ease

ment of light and air in favor of her lot as well as the lot adjoining that of the defendants on the north, the observance of which, as to her own lot, she has a right to enforce. Considered in the light of the undisputed facts, and giving to the words employed their ordinary and proper meaning, we are unable to see that the clause in question is susceptible of any other reasonable construction. It cannot be successfully contended that the restriction was intended to be merely personal or temporary, such as during the lifetime or the ownership of Mr. Hough, the grantee of Mrs. Sergeant. No warrant for any such construction can be found in the language employed. The words of the covenant are that "the said William G. Hough, his heirs and assigns, shall not nor will at any time hereafter erect," etc. In principle the case does not essentially differ from Clark v. Martin, 49 Pa. St. 289, and St. Andrew's Lutheran Church's Appeal, 67 Pa. St. 512, and is ruled thereby. On the case, as presented, we think the learned court erred in denying the motion for a preliminary injunction. Decree reversed, with costs, to be paid by defendants, and it is ordered that, upon plaintiff giving bond in such sum as may be fixed by the court below, a preliminary injunction, as prayed for, be issued.

LLEWELLYN v. LEVY.

(Supreme Court of Pennsylvania. Oct. 1, 1894.)

HUSBAND AND WIFE-SEPARATION-LIABILITY FOR

NECESSARIES.

A husband is liable for necessaries furnished his wife, from whom he had separated," where he had practically deserted her, and neglected to provide for her, but had previously paid bills contracted by her, and plaintiff was unaware of any change in their relations.

Appeal from court of common pleas, Philadelphia county.

Action by William H. Llewellyn against S. L. Levy for necessaries furnished defendant's wife. The court directed a verdict for der fendant, and plaintiff appeals. Reversed.

Bradbury Bedell, for appellant. David W. Sellers, for appellee.

STERRETT, C. J. This record presents the single question whether the learned trial judge erred "in directing the jury to render a verdict for the defendant." An examination of the testimony in support of the plaintiff's claim clearly shows that it was not only proper for the consideration of the jury, but, if believed, would have warranted them in finding that the defendant, without apparent justification, practically deserted his wife and child, and neglected to make such provision for their support and maintenance, as their necessities required, and his own financial condition would have enabled him to furnish. It also shows that the goods fo