ity to Amelia Stewart shall be reduced to the sum of five hundred dollars per annum."

The said Amelia Stewart died on December 7, 1877. The clear profits of the business alluded to in the clause above quoted are over four thousand dollars per annum. If the court should be of opinion. that the plaintiff is entitled to a proportionate part of said annuity then judgment to be entered for the plaintiff in the sum of one thousand dollars, with interest from December 7, 1877, or from April 7, 1878, as the court may be of opinion; but if not, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein.

Opinion delivered July 12, 1879, by

THAYER, P. J.-The rigor of the common law rule against the apportionment of rents, annuities and other periodical payments, in respect of time, has frequently been the subject of comment by legal writers, and its harshness has been to some extent ameliorated in modern times by the recognition of certain well-defined exceptions, as, in cases where an annuity is given in lieu of dower, or for the separate maintenance of married women, or for the support of children, or where it consists of interest or of other sums accruing de die in diem. In England the rule has been cut up and abrogated by the statute of apportionment, 4 Will. 4, Ch. 22, which enacts that all rents, annuities, pensions, dividends, moduses, compositions, and all other payments due at a fixed period, shall be apportioned, so that on the death of the person interested therein his executor shall be entitled to his proportion of such payments. We have no similar statute in Pennsylvania, so that the rule remains as at common law, modified only by the exceptions which have been referred to.

The case before us is clearly not within any of the exceptions, unless it can be regarded as a case in which the annuity bequeathed is of a sum accruing de die in diem. It has been frequently ruled that dividends are not an exception, and I am not aware that any case has been brought within the exception where the payment is of a sum which in rerum natura cannot be ascertained until the end of the year. In MeKeen's Appeal, 6 Wr. 479, the bequest was of the testator's yearly dividend arising from a partnership in which he was interested as copartner, that is, it was the testator's share of the profits made and declared in any particular year, and it was held that this was not apportionable, because at no time in the year preceding the time when the profits were declared could it be determined how much of it had been earned. Whether the business of any particular year will result in a profit or a loss cannot be determined at any time before the end of the year, for even if large profits should be earned up to a particular date within the year, yet it is obvious that they may all be swept away by losses which may happen in the remainder of the year. Where therefore the contingency upon which the annuity depends can only be ascertained at the end of the year there can be no presumption of an intention to give profits de die in diem. McKeen's Appeal does not seem to be distinguishable in principle from the present case.

Here the bequest to Amelia Stewart was in express words, of “an

annuity of $1,500 per annum from the date of my decease, during all the period of her natural life, to be paid by my wife out of the proceeds and profits of the business to be carried on by her." "In case, however, the said business should so depreciate as to produce less clear profit than $4,000 per annum, then the said annuity shall be reduced to the sum of $500." Now it is quite plain that whether the annuitant should receive $1,500 or $500 per annum could only be determined by an examination of accounts at the end of the year to ascertain whether the clear profit of $4,000 had been made. The testator could not therefore have intended that any sum should become due to the annuitant until the end of the year. When the testator says "$1,500 per annum from the date of my decease," he evidently means nothing else than to designate the time when each annual payment shall become due, and this is fully confirmed by the subsequent provision that unless the clear profits of his wife's business shall reach in any one year the sum of $4,000 the annuitant at the end of that year shall receive only $500. The profits out of which the larger sum is to be payable are not the profits which may be made de die in diem, but the profits which, at the end of the year, may appear to have been made within the whole year. Indeed the profits, as such, were not bequeathed to Amelia Stewart. The business was to be carried on by the widow of the testator. What was bequeathed to the annuitant was a yearly sum of $1,500 or $500, as the case might be, to be derived from the annual profits of the business to be carried on by the widow. There is no indication of an intention on the part of the testator that any portion of the profits accruing de die in diem should belong to the annuitant.

Upon the law as settled in this State the case is with the defendant. If it should seem to be in any respect harsh or illiberal, let it be remembered that those rules of the common law which by original adoption. and long recognition have become part of the substance of our own laws can only be eradicated or remoulded into more convenient forms by au exercise of legislative power. Judicis est jus dicere non dare. Judgment for defendant on case stated.

C. S. Patterson and T. De Witt Cuyler, Esqs., for plaintiff.
Edward Hopkinson, Esq., for defendant.

[Leg. Int., Vol. 36, p. 302.]

FRENCH VS. THE PHILADELPHIA AND READING RAILROAD Co. The prothonotary may assign to a suit about to be brought a number in the court which then has the current business, although the proceedings are not actually begun till after the thousand cases allotted to that court are exhausted. Under the act of April 13, 1846, seet. 17 (P. L. 312), and the act of April 12, 1864 (P. L. 396), extending the provisions of the said 17th section of the act of 1846 to the defendants, the Philadelphia and Reading Railroad Company, have the power to make lateral or branch roads leading from the main line to points in either of the counties into or through which said main line may pass, and to appropriate so much of the land to be crossed by such branch as may be necessary to the full enjoyment and exercise of the power so granted to them by the legislature. If, in the exercise of this grant, they cause damage to the owners of the laud, the law provides them with a remedy for the recovery of that damage.

Motion for a special injunction. Opinion delivered July 26, 1879, by BRIGGS, J.-The defendants move to quash this motion for want of

jurisdiction in this court to entertain it, because, in point of fact, the bill was not actually filed until the Court of Common Pleas No. 1 had charge of the current business. This is true. It is equally true, however, that the plaintiff's solicitor, desiring to file the bill, procured from the deputy prothonotary the information on July the 19th instant, that this court had the current business, and said deputy at that time assigned for the plaintiff's bill number " 864." This is its numerical place in the current business of this court, and this number was retained and constituted one of the thousand cases assigned to this court, according to the general rule made by the board of judges, apportioning the business among the several courts of the county. The current business for this court ceased about 2.50 o'clock P. M., on Monday, July 21 inst. The bill was filed July 22 inst., and marked with the number "864," assigned for it on the 21st inst. There is no allegation of bad faith attributable either to the plaintiff's solicitor or to the deputy prothonotary. So, if the defendants succeed with their motion to quash, it must be be cause of their technical right to take the bill from the calendar of this court. The rule distributing and apportioning the business among the courts was made to distribute equally the cases coming into the office of the prothonotary, so that one court should not have cast upon it a greater portion of the business than that assigned to each of the other courts. In other words, the rule was made for the convenience of the several courts and not for the suitors coming before the court. The rule provides that the prothonotary shall assign to each of the courts in nuinerical order 1,000 cases alternately, "and the distribution, apportionment and assignment so made by the prothonotary, in obedience to this rule, shall be conclusive upon all parties to such actions or proceedings; and the court to which the said cases shall be respectively distributed and assigned by the prothonotary shall, as provided by the constitution, have exclusive jurisdiction thereof." The deputy prothonotary, under this rule, having in good faith assigned the case to this court, as one of the thousand properly allotted to it, and the case appearing upon our records in due form, there is no ground to strike it from the calendar. The motion to accomplish such a result is therefore dismissed.

This brings us to the consideration of the motion for the preliminary injunction. It is evident that great damage will be done to the plaintiff's property by the defendants laying their road through his premises. This certainly justified him in challenging their power to inflict such damages upon him. Before the defendants can exercise such authority they must show an express grant by law to do so. Their existence being artificial, they have no natural rights such as pertain to natural persons. Hence whatever powers they possess must be shown by the law creating them; in other words, by their charter or act of incorporation and the several acts supplementary to their charter. This brings us to the inquiry, has the legislature expressly granted to the defendants the exercise of power against which plaintiff complains? In answer the defendants point to the original act, by virtue of which they located and built their roadway, approved the 4th day of April, A. D. 1833 (P. L. 144). To the act approved the 13th day of April, 1846, incorporating the Pennsylvania Railroad Company (P. L. 312), and to the act of April 12, 1864, extending the provisions of the 17th section of the act

incorporating the Pennsylvania railroad to the defendants' company (P. L. 396). It is not necessary to refer to the act incorporating the defendants' company, as such is not in question. The other legislation, however, just referred to, is material and needs careful consideration. The 17th section of the act incorporating the Pennsylvania railroad is this: "And it shall be lawful for the said company in the manner and subject to the conditions and provisions herein before provided in relation to the main line of their railroad by this act authorized to be made, to make such lateral railroads or branches leading from the main line of their said railroad to such convenient places or points in either of the counties, into or through which the main line of their road may pass, as the president and directors may deem advantageous and suited to promote the convenience of the inhabitants thereof and the interest of the said company." The act of April, 1864, extending the provisions of the law just quoted, is in these words: "That so much of the 17th section of the act approved April 13, 1846, entitled 'An Act to Incorporate the Pennsylvania Railroad Company,' as confers the right of making lateral or branch railroads, leading from the main line of their railroad to places or points in either of the counties into or through which the said main line may pass, under the provisions and restriction therein mentioned, be and the same is hereby extended and applied to the... Philadelphia and Reading Railroad Company." The language of this legislation is not only express, but it is also very comprehensive in its scope, and seems to cover the whole ground contended for by the defendants. Observe, it grants the power to make lateral or branch railroads, leading from the main line to places or points in either of the counties into or through which said main line may pass. When we consider that the main line of the defendants' railroad had been made and had been in working operation for several, indeed for many years, when the act of 1864 was passed, the conclusion becomes irresistible that the latter act contemplated something more than the enlargement of the scope within which the main line was then used, and clearly meant just what the language employed expressed, to grant the power, not then possessed, to make lateral or branch railroads. Branch from what? Clearly from the trunk or main line then in operation. To where? In the words of the act, to any places or points in the counties into or through which the main line then passed. The only limitations placed in the act upon the defendants is that the place or point to which the branch shall extend shall be within the county. The point to which by this branch the defendants seek to extend their railroad being in this county, into which their main line passes, their right to do so is, to my mind, without any doubt at all. If authority were wanting to support the plain language of the acts referred to, it is found in the case of the City of Pittsburgh vs. The Pennsylvania Railroad Co., 12 Wright, 335, where the Supreme Court, upon facts precisely analogous to those in this case, broadly affirmed the power which the defendants here claim to exercise. I am therefore quite clear that the defendants have the power expressly granted to them to appropriate so much of the plaintiff's land to be crossed by this branch as may be necessary to the full enjoyment and exercise of the power granted to them by the legislation referred to. If, in the exercise of this grant, they cause damage to the plaintiff, the law pro

vides him with a remedy for the recovery of that damage. Whether that remedy is co-extensive with the injury which will be done him I need not discuss, as my duty is to enforce the law as it is given to me by the law-making power. If the law is just, then by all means it should be enforced. If it is oppressive to the citizen, the legislature-not the judiciary-should annul it. It follows from what has been said that the special injunction prayed for should be refused.

Motion dismissed.

S. E. Megargee and David W. Sellers, Esqs., for plaintiff.
James E. Gowen, Esq., for defendants.

[Leg. Int., Vol. 36, p. 392.]

GERTZER vs. KAMMERER.

Parol evidence is admissible to show a boundary line agreed upon between grantor and grantee notwithstanding the language of the deed.

Sur rule for new trial. Opinion delivered October 4, 1879, by ELCOCK, J.-The plaintiff and defendant are the owners of adjoining lots of ground, having purchased them from Clement L. Hughes, who had owned them for about thirty-five years. The defendant's southern line runs along an alleyway which has existed for a great number of years, and which is upon the land of the plaintiff, defendant's lot having had an opening on said alley, and using it in common with the occupants of plaintiff's lot. The deed to defendant, after describing the lot by metes and bounds, contained the general recital of "together with all streets, ways, alleys, waters, water-courses," etc.

Plaintiff closed the alley by erecting a fence across the same, which defendant removed, and this action was brought to determine the rights of the parties.

Upon the trial parol evidence was admitted to show that before defendant purchased he went upon the land with Hughes, his grantor, who told him that he would purchase no rights to the alley, showed him the line of his lot which had been surveyed, explained to him how he could run his water-course by a pipe through his building to the front, and of his intention to build the adjoining lot and alley up solid. From the survey then made the defendant's deed was prepared.

It is now contended that parol evidence was not admissible to show the understanding between the parties as to the boundary line when the aforesaid general words exist in the deed of conveyance.

As the existence of an easement can be established by parol its destruction by the same evidence must naturally follow. Consentable lines without regard to the words of a deed have always been recognized and maintained by the law, and as the case is not within the statute of frauds, parol evidence is admissible in all controversies relative to this question. The subject has been well considered in Pennsylvania in a number of cases, the latest of which are Kellum vs. Smith, 15 P. F. Smith, 86; Hagey vs. Detweiler, 11 Casey, 409; Bowen vs. Cooper, 7 Watts, 311. An examination of these cases, which are so clear upon the point, leave no doubt upon the subject, and as we see no error the rule is discharged. E. C. Quin, Esq., for plaintiff.

F. S. Cantrell, Esq., for defendant.