report of the proceedings on a motion for judg-" ment on a point reserved in the Court below, ante, p. 14; and also in the opinion of this Court, infra. The jury having found a verdict of $4000 against both defendants, subject to a point reserved as to the liability of defendant Shoneman, the Court subsequently entered judgment in favor of Shoneman on the point reserved, and judgment for the plaintiff against Hemingway alone for the amount of the verdict. Whereupon plaintiff took this writ, assigning for error the action of the Court in entering judgment for the defendant, Louis Shoneman, non obstante veredicto. John G. Johnson, for plaintiff in error. February 4, 1884. THE COURT. The defendant was sued with William Hemingway, and a verdict rendered against both. The Court below reserved the question of Shoneman's liability, and subsequently entered judgment in his favor non obstante veredicto. As the jury have found that Shoneman took part in the work and was negligent, the case requires an examination of the testimony to see whether there was sufficient evidence of his participation in the act complained of. If there was, the verdict must stand. The plaintiff was injured by a large bale of waste paper falling upon him as he was passing along Birch's Place, a small, narrow street. It was thrown from one of the upper windows of defendant Shoneman's store under the following circumstances: Shoneman had a large quantity of waste paper in the upper story of his building. He sold it to the defendant HemingThe act complained of was done by Heming-way, who is a dealer in waste paper and rags. way's servants, under the direction of an agent of Shoneman, sent by the latter to show the servants how to get the bags out. Shoneman is liable because he directed the men to remove the bags by the window, knowing that this act was one fraught with danger to those passing on the street. Hemingway sent two men, Dickson and Williams, to Shoneman's store to pack and tie the paper up in bags, and a few days after to take it away. They dropped the bags out of a window, in the side of the store, down to the street, and Shoneman and Hemingway might jointly have undertaken personally to remove the bales, and if they had done this negligently they would un-put them on a wagon. One bag had been thrown doubtedly have been jointly liable. The same responsibility is incurred when they do a negligent act by their several servants. Wray v. Evans, 30 Smith, 105. R. P. White (Mayer Sulzberger with him), for defendant in error. No man is liable for the negligence of another unless that other is his instrument in doing the act which causes the injury. A direction given by a stranger controls no one. Ardesco Oil Co. v. Gilson, 13 Smith, 150. Stevens v. Armstrong, 6 Selden, 435. Holmes v. Halde, 74 Maine, 29. Peachey v. Rowland, 13 C. B. 182. Butler v. Hunter, 7 H. & N. 826. The test of service is this: Who paid for the doing of the work? To whom would the men be liable for default in the doing of it? Even had Shoneman's direction, not to bring the bags down through the store, been a cause of the accident, still it would have been only the remote and not the immediate cause. Wharton on Negligence, ?? 134 and 143. down safely, and then a second bag was dropped, This statement of Shoneman's share in the transaction is stated as strongly as it will bear for the plaintiff. Is it sufficient to render Schoneman liable for the injury? There are three facts here about which there the paper was stored belonged to defendant, can be no dispute: (1) The building in which Shoneman; (2) He had sold the rags to HemDickson and Williams, the two men who went ingway, who was to take them away; and (3) to Shoneman's store for that purpose, were the servants or agents of Hemingway, and were in his employ at the time the accident occurred. When, therefore, Dickson and Williams called at Shoneman's store, and were shown the paper, There cannot be two superiors severally liable and instructed to take it away, there was a de for the same wrongful act. Wray v. Evans, 30 Smith, 102. livery in law and in fact to Hemingway; the title passed to him, and the mere fact that it was box by means of the tackle, they would not have been responsible for his negligence in doing so. any more than Mr. Shoneman is liable for having directed Hemingway's servants to remove the bales by way of the window. I concede that if Shoneman had directed the manner of throwing the bales out of the window, and that if this particular bale had been thrown in accordance with such direction, he would have been responsible. This is as far as the cases go. still on Shoneman's premises would not make him responsible for the conceded negligence of Hemingway's servants in removing it, unless he (Shoneman) in some way interfered with or directed the manner of said removal. Did he do so? The whole case narrows down to this single point. It is alleged that he either directly, or through the boy that he sent up with the men, directed the bales to be thrown out of the window. Granted. But he did not direct the men to throw them upon the heads of passers-by. They The doctrine of respondeat superior is at best might have been thrown out with perfect safety, a severe rule. Were we to give it the construcand had been upon former occasions. Had he tion claimed for it by the plaintiff, we would directed the men to take them down the stair-extend it beyond the authority of any adjudiway, and an accident had occurred, would he cated case, and further than a sound interpretahave been responsible? This is not pretended, tion of the law requires. yet there would be as much reason to hold him in the one case as in the other. Shoneman had no reason to suppose that the bales would be thrown out of the window carelessly, and so as to injure any one. He had given no such direction, and he was not responsible for the manner of the removal, for the reason that the property was no longer his, and the men were not in his employ. All that Shoneman did was to point out the place of exit from his premises, and surely a property-owner may do this without Jan. '84, 268. making himself liable for the negligence of another man's servants in the manner of the removal of the articles. The case of Stevens v. Armstrong (6 Selden, 345), is in point. There the defendants were merchants in the city of Troy, N. Y. They sold to the Messrs. Plum a box which was in the upper loft of the defendants' store. The Messrs. Plum sent their porter for it. The latter went upon defendants' premises to remove it, and while engaged in lowering the box with a tackle, an accident occurred through the porter's negligence, by means of which the plaintiff was injured. The Court of Errors and Appeals ruled that "the defendants could not be held liable for the negligent acts of the porter, by virtue of the principle applicable to the relation of master and servant, unless that relation in fact subsisted. Knowing and permitting the porter to go into the loft to get the box, being, in fact, at the time the servant of Plum, and actually acting in his employment, did not constitute the porter in any degree the agent or servant of the defendants while engaged in removing the box. The relation of master and servant cannot be created but by contract, express or implied, between the master and servant." The only distinction between that case and the one in hand consists in the fact that in the latter Shoneman directed the bales to be thrown out of the window, which is a distinction without a difference. If, in the New York case, the defendants had directed the porter to lower the We are of opinion that the learned Judge of the Court below was right in entering judgment non obstante veredicto in favor of the defendant, Schoneman, and the Judgment is affirmed. Opinion by PAXSON, J. Transue v. Sell. W. M. S., Jr. March 11, 1884. Deed-Implied covenants-Lots described as bounded by an alley-Plan referred to in a deed-Limitations. On the sale of a lot bounded by a street the title passes to the centre of the street, if the grantor had title to the land covered thereby, unless he reserved it either expressly or by clear implication. When one who is the owner of land sells and conveys lots according to a plan which shows them to be on a street or alley, this creates an implied covenant of the existence lic use. The fact that it does not appear on the borough of the street or alley, and operates as a dedication to pubmaps or plans is immaterial as between parties claiming under the original owner and affected with knowledge of his plan. In the absence of the original draft or plan employed by the grantor, its place may be supplied from other evidence from which the jury are to determine the location of the disputed street or alley. Mere different and disconnected acts of trespass extending over parts of several years are clearly insufficient to Limitations or to bar the public character which has been establish any right to obstruct an alley under the Statute of stamped on the land by its dedication to public use as an alley. Error to the Common Pleas of Northampton County. Case, by William Sell against Reuben Transue, to recover damages for the obstruction of a private alley. On the trial, before SCHUYLER, J., the following facts appeared : Plaintiff was owner of three lots in the borough | that point also my opinion of the law is against of South Bethlehem. For these lots he had two the defendant, and I say to you that, in delibedeeds in one the description was, inter alia, rating upon your verdict you have no right to "extending 114 feet to a 16 feet wide alley," in inquire upon that subject." (Fourth and ninth the other that the lot extends easterly between assignments of error.) parallel lines, at right angles to said Northampton The Court refused to affirm defendant's first Avenue, 114 feet to an alley." In 1875 defend-point, which was that the easement claimed arose ant bought the land east of plaintiff's lots; and by implication, not by grant, was never opened, in 1880 he bought of C. A. Luckenbach (the and existed merely on paper, and charged: original owner of the entire tract) his interest in "Now I say to you that under these two deeds an alley running along defendant's lot, if any he the plaintiff is entitled to an alley on the eastern had. Plaintiff then brought this action. It ap-boundary of his lot, whether it is a public or pri peared that he had no grant of an alley at this vate alley is a matter of no concern. He is point, but he claimed that as his deeds called for entitled by virtue of the covenants in these deeds an alley as the eastern boundary of his lots he to an alley on the eastern end of his lots. The had a right of action against defendant for dis-question for you to determine is whether this turbing it. alley to the use of which he is entitled under Plaintiff offered in evidence a number of deeds these deeds is the alley which the defendant has showing his title and also defendant's title from obstructed; if you find such to be the fact then Wolle, the common grantor, all of which de- your verdict will be in favor of the plaintiff for scribed the lots as bounded by this alley. One six cents damages, and that will end the suit. . . of plaintiff's deeds called for "a plan of lots of In determining the question whether the alley reAug. Wolle, merchant, in the southern addition ferred to in these two deeds is the alley upon to the borough of Bethlehem, in Saucon Town-which these obstructions exist, you will take into ship, Northampton County, Pennsylvania, 1858." consideration the deeds themselves, as well as the A map of Wolle's lots was offered, not as the identical plan called for in the deed, defendant's counsel saying, "We have no objection, but we do not admit its sufficiency." Wolle's son testified that his father had used this map, and had never to his knowledge used any other in the sale of lots. other deeds that have been offered in evidence, together with this draft or plot that you see here rolled up on the table, if that will throw any light on the subject, as it may, provided you find that it is a genuine plot of the property in dispute. . . . You will have the draft before you, and if satisfied of its correctness you will take that draft in connection with these deeds, and locate this alley if you can, and if you locate it so as to bring these obstructions upon it, then, as I have already said, your verdict will be in favor of the plaintiff. . . . . That is all you have to pass upon; you will leave out everything else in your consideration of the case, and confine your deliberations simply to the inquiry I have indicated." (First, tenth, and eleventh assignments After the evidence was all in plaintiff's counsel admitted that the map testified to was not the map referred to in the deed, and defendant's counsel moved that the map, and all the evidence relating thereto, be ruled out of the case, and subsequently requested the Court to charge that it was the first duty of the plaintiff to produce the identical map called for in the deeds. The application was denied and the point refused. (Second, seventh, and sixteenth assignments of of error.) error.) The defendant also offered to show that the disputed alley had never appeared upon the borough maps and books of South Bethlehem. Objected to; objection sustained. (Thirteenth assignment of error.) Verdict for plaintiff for six cents damages, and judgment thereon. Defendant thereupon took this writ, assigning for error the refusing of his offers of evidence and of his points, and the portions of the charge of the Court above cited. W. E. Doster (L. R. Myers with him), for plaintiff in error. A considerable portion of the defendant's evidence was devoted to showing that plaintiff had A map or plan referred to in a deed becomes abandoned his rights in regard to the alley by a material and essential part of the conveyance, acquiescence in its use by defendant; the Court and has the same effect as though incorporated charged: "But I say to you that the evidence in it. It was error to allow plaintiff to go on on that part of the case is insufficient for that with his case without producing the original or purpose, and that you have nothing to do with accounting for its absence; still more to allow the question." (Third, fifth, sixth, and eighth him to put in evidence one which he admitted to assignments of error.) Other portions of defendant's evidence were for the purpose of showing adverse possession for twenty-one years; the Court charged: "Upon | be different. Birmingham v. Anderson, 12 Wright, 253. Parker v. Kane, 22 How. 18. Davis v. Ranisford, 17 Mass. 211. We should have been allowed to show by the borough maps that this alley, which plaintiff in his declaration claimed to own" in common with all the owners of other lots abutting on said alley," had never been recognized or known publicly as having any existence. Spackman v. Steidel, 7 Norris, 453. Robert L. Cope, for defendant in error. The map sent to the jury was proved to be the one which Wolle used to sell lots from. It was never claimed to be the one called for in the deed, aud was merely submitted as any other draft of the locality would have been. Only one of the deeds to plaintiff's three lots contained any reference to a plan. A right of way is implied in a grant of land described as bounded on an alley or street. This right cannot be lost by disuse or non-user. Spackman v. Steidel, 7 Norris, 453. Crow v. Wolbert, 7 Phila. 178. Van Meter v. Hankinson, 6 Wharton, 307. Erb v. Brown, 19 Smith, 216. Waite on Actions and Defences, vol. 6, p. 348. The rights of the parties as between themselves could not be affected by the borough maps. March 24, 1884. THE COURT. It is well settled law that on the sale of a lot bounded by a street, the title passes to the centre of the street, if the grantor had title to the land covered thereby, unless he reserved it either expressly or by clear implication. (Paul v. Carver, 2 Casey, 223; Cox v. Freedley, 9 Id. 124; Trutt v. Spotts, 6 Norris, 339; Spackman v. Steidel, 7 Id. 453.). When one, who is the proprietor of the portion of the town in which the lands lie, sells and conveys the lots according to a plan which shows them to be on a street or alley, it creates an implied covenant of the existence of the street or alley. (Trutt v. Spotts, supra.) When Wolle laid out the plan of lots on the alley now in contention, he was the undoubted owner of the land covered thereby. When he sold and conveyed the lots according to the plan and bounded them on the alley, he not only conveyed the use of the alley as appurtenant to the lots bounded thereon, but he thereby dedicated it to public use. In this case the evidence is clear that the grantor made a plan and by it sold lots. The omission to produce the draft on the trial, under the other evidence, was not error. The jury has found the true location of the alley to be as It was claimed by the defendant in error. actually opened and used for several years as a public alley. The fact that it was not entered on the books or maps of the borough of South Bethlehem was unimportant to the rights of the parties in this action. The defendant in error showed title derived from Wolle, and was entitled to all the rights, privileges, and appurtenances flowing from his deed of conveyance. Thus holding, the defendant in error had a right to the free and uninterrupted use of the alley. The plaintiff in error had acquired no right from any person by grant or conveyance to obstruct the alley, but sought ferent and disconnected acts of trespass extendto protect himself from liability by proving difing over parts of several years. All the evidence was clearly insufficient to establish any right to obstruct the alley under the Statute of Limitations, or to bar the public character which had been stamped thereon by the former owner of the land. The assignments are not sustained. Judgment affirmed, Opinion by MERCUR, C. J. Jan. '84, 53. J. D. B., Jr. January 31, 1884. McGlue v. City of Philadelphia. Practice-Act June 16, 1836-Voluntary arbitration-Errors and appeals-Judgment irreg ularly entered cannot be validated by consent after removal of record to Supreme Court, on writ of error. When, after a voluntary submission of a cause to arbitration, under the Act of June 16, 1836 (P. L. 715), and the filing of exceptions to the referee's report, the Court sustains the exceptions, but enters no judgment, files no the referee, a subsequent entry of judgment by the Proopinion, and makes no order referring the cause back to thonotary, as of the day the exceptions were sustained, is unauthorized, and the cause must be considered as still pending. Under these circumstances, an agreement of counsel, submitted to the Supreme Court, to waive all technical defects as to the sufficiency of the pleadings, in order that the judgment may be reviewed by the Supreme Court, is not sufficient to establish a judgment in the Court below which the Supreme Court can affirm or reverse, and the writ of error was quashed. Error to the Common Pleas No. 1, of Philadelphia County. Debt, by Edward S. McGlue, Sr., against the City of Philadelphia, to recover a sum of money alleged to be due him upon a contract for repairing a certain street. By agreement of the parties, and according to the provisions of the Act of June 16, 1836, the matters in controversy in this case were sub- | to set aside the report of the referee, but not to mitted to Samuel Gormley, Esq., as referee. direct or authorize any judgment to be entered. On December 8, 1882, the referee filed his re- It left the cause pending. port, awarding in favor of the plaintiff $470.88, with interest, etc. On the same day the defendant filed exceptions to the report of the referee, which exceptions the Court below sustained, but filed no opinion and entered no judgment. Subsequently, by agreement of the parties, but without an order of the Court, the Prothonotary entered judgment. Thereupon the plaintiff took this writ, assigning for error the action of the Court in sustaining the exceptions to the report of the referee, and in refusing to enter judgment for the plaintiff. Afterwards, the Prothonotary, without any order from the Court, made an entry of "judgment" as of the day the exceptions were sustained. We cannot treat this as a judgment of the Court. It is not only without authority of the Court, but is in conflict with the clear intent and purpose of the decision which it did make. On application to the Court below, the entry will be stricken from the record. We have not overlooked the statement made at the end of the "History of the Case" as to the understanding relative to the pleadings and amendments thereto; but all therein contained is wholly insufficient to establish a judgment in the Court below, and therefore there is none for us to either affirm or reverse here. Writ quashed. Appended to the plaintiff's "History of the Case" was the following statement: "In order to avoid any amendments of the pleadings, it is understood that all technical defects as to the sufficiency of the pleadings are waived, and that no error in said pleadings shall prevent a recovery by plaintiff, and an entry of judgment in error against the defendant, if, under the facts before the Court and the law, a recovery could be had on the plaintiff's claim herein under any | June, '84, 135 other form of action.' J. Levering Jones (with him William A. Redding and Hampton L. Carson), for plaintiff in error. William H. Addicks (with him Wm. Nelson West, City Solicitor), for defendant in error. February 11, 1884. THE COURT. This contention arises from an agreement to submit all matters of controversy in a pending suit to a referee under the Voluntary Arbitration Act of 16th June, 1836. The agreement fails to specify whether the reference is under the third or the sixth section of the Act. The party against whom the award is made may file exceptions thereto under either section for plain mistake in matter of fact or matter of law. If, on exceptions so filed to an award, it shall appear that such mistake has been made, the seventh section of the Act makes it lawful for the Court to refer the cause back to the same referee for further proceedings. We do not think, however, this is obligatory on the Court; but if the award be substantially defective, it may be wholly set aside. It was so held on a similar statute in Etter v. Edwards (4 Watts, 63). In the present case, the award was in favor of the plaintiff for a sum specified. The defendant filed seven exceptions thereto. Some of them alleged mistakes of fact, others mistakes of law. Each of them struck at the validity of the whole award. The Court sustained the exceptions. There its action stopped. It filed no opinion. It made no order referring the cause back to the same referee; nor did it make any other order. The effect of the decision of the Court was Opinion by MERCUR, C. J. J. H. M. March 26, 1884. Ellis et al. v. Cadwallader. Covenant sur ground-rent deed-ExecutionRight of terre-tenant to intervene and enter stay of execution-Practice. Where in an action of covenant sur ground-rent deed enantor, a terre-tenant may subsequently obtain leave to judgment has been recovered against the original coventer security for stay of execution. Error to the Court of Common Pleas No. 1, of Philadelphia County. Covenant sur ground-rent deed, by Anna M. Ellis and Charles E. Ellis, executors of Amos Ellis, deceased, against Cyrus Cadwallader, who was the original covenantor. The writ was served, and judgment was entered against the defendant for want of an affidavit of defence. A fi. fa. was issued under which the premises were levied on and condemned. Thereupon, one T. W. Smaltz filed a petition alleging that he was the owner of the premises out of which the ground-rent issued, and prayed for a rule to show cause why he should not be allowed to enter security for stay of execution. The rule was granted and subsequently made absolute. Smaltz thereupon entered security. The defendants never applied to enter security for stay. Plaintiffs thereupon took this writ, assigning for error the action of the Court in making the above rule absolute. John H. Sloan, for plaintiffs in error. The party claiming to be terre-tenant never interposed until after judgment had been entered |