jury sustained by another piece of property belonging to the same owner. (5) Nor can the owner of a farm or tract, part of which is benefited and another part of which is injured, divide his property arbitrarily so as to exclude from the consideration of the jury the advantages he secures in one place, while recovering for the disadvantages suffered in another.

These well-settled rules applied to the facts disclosed in this case show that the contention of the plaintiff cannot be sustained. It was error to submit to the jury the question whether "the whole tract of 46 acres has been divided into different farms, separated by fixed lines; not a mere temporary division, but actually settled and reasonably permanent one," for there was no evidence on which such a finding could rest. We think the third assignment of error is also sustained. The question was not what had been offered for some particular building lot, but what was the value of the plaintiff's farm as a whole before and after the railroad had passed through it. Judgment reversed and venire de novo awarded.

HUMES v. DOTTERMUS.

(Supreme Court of Pennsylvania. March 19, 1888.)

CONTRACTS-TOBACCO RAISED ON SHARES-INSURANCE-ACCOUNTING.

Where plaintiff agreed to cultivate and cure tobacco on land belonging to defendant, the tobacco to remain the property of defendant until sold, and then the proceeds to be divided on certain terms, and the tobacco was burned while in possession of defendant, and before it had been sold or in any way divided, plaintiff is entitled to an accounting with defendant for his share of any insurance collected by defendant on the tobacco.

Error to court of common pleas, Chester county.

Augustus Dottermus, plaintiff, sued David Humes, defendant, for a portion of certain money collected on an insurance policy covering tobacco, in which plaintiff claimed an interest. Dottermus agreed to cultivate and cure six acres of tobacco on land which was in possession of Hume. Under the terms of the written agreement of the parties the ownership of the tobacco was in defendant until sold or divided as therein provided for. When sold, the proceeds were to be received by the defendant, and he was to retain onehalf and pay to the plaintiff the other half, first deducting therefrom the indebtedness of the plaintiff to him. If the tobacco, by reason of disagreement between the parties as to the price it should be sold for, was not sold by March 1, 1885, then it was to be divided into two parts, and the defendant to take one-half and so much of the other half as was equal to the indebtedness of the plaintiff to him, and the plaintiff was to take the remainder. The tobacco was not sold by the 1st of March, 1885, by reason of the price in the market not being satisfactory to either party. The tobacco was burned in April, 1885. Defendant had a policy of insurance on it for $525. The court charged the jury that whatever money was received by the defendant on account of the tobacco destroyed by fire, took the place of the tobacco, and was money in the hands of the defendant for distribution under the agreement, just as if the tobacco had been sold for this amount, and the purchase money received by defendant, and that plaintiff was entitled to recover so much of the one-half thereof as remained after deducting from such half his indebtedness to the defendant. The jury found for the plaintiff in one-half the insurance money received on the tobacco, less an indebtedness due defendant from plaintiff.

W. M. Hayes, for plaintiff in error. John A. Coyle and T. & W. Butler, for defendant in error.

PER CURIAM. The only question of any moment, in this case, was as to the amount of money which Humes received from the insurance company on ac

count of the tobacco, and that was properly referred to the jury. It is certainly a very plain proposition that if Humes received the whole price of the tobacco he got the proceeds of that which belonged to Dottermus as well as that which belonged to himself, and could not, therefore, refuse to account for that which was owned by his co-owner. Judgment affirmed.

WARWICK IRON Co. v. FIRST NAT. BANK OF HONEYBROOK.

(Supreme Court of Pennsylvania. March 19, 1888.)

1. SALE-VALIDITY AS AGAINST CREDITORS-POSSESSION Of Vendor.

Where plaintiff purchased certain blooms of his debtor, and allowed them to remain in his possession 13 months, they were subject to an execution in favor of the defendant against the vendor, although defendant was notified of the sale when made.

2. SAME.

Where plaintiff purchased pig-iron in the possession of one C., and left it with him to be made into metal blooms, but it was not manufactured on account of the dullness in business, it was not subject to an execution held by a creditor of the vendor.

Error to court of common pleas, Chester county.

The Warwick Iron Company filed an interpleader against the First National Bank of Honeybrook to determine the right to certain metal blooms and pigiron levied on by the sheriff on a judgment against one John Cornog, in favor of the bank, the property being claimed by the iron company under certain bills of sale. In July, 1884, John Cornog was indebted to the Warwick Iron Company, of Pottstown, in nearly $6,000, but was unable to pay in cash. July 17, 1884, he executed a bill of sale, under seal, for all the pig-iron at the forge and station to the Warwick Iron Company, for $1,350, the full market value thereof. The iron company gave him a receipt, and credit for that sum on the indebtedness. At the same date, Mr. Cornog executed to the iron company, under his hand and seal, a paper, acknowledging that he had received from the iron company the 75 tons of pig-iron, and he agreed to convert it, at his forge, into charcoal blooms. On the same day (July 17, 1884) Mr. Cornog, under his hand and seal, sold to the Warwick Iron Company all the blooms at his forge for $720, the full market value thereof, and further stipulated in said agreement that "the above blooms are to be delivered at the said above station at such times, and in such quantities, and billed to such parties, as the said Warwick Iron Company may direct, by letter or otherwise." The iron company gave Mr. Cornog a receipt and credit for the $720 on account of his indebtedness. A short time after the sale, Mr. Cornog told the cashier of the bank that he had made the sale, and that the iron company was the owner of the pig-iron and blooms. On the 21st day of August, 1885, the bank issued execution on a judgment which they held against Mr. Cornog, and the pig-iron and blooms were levied on. The blooms had remained where they were at the time of the sale until levied on some 13 months. The court charged the jury: "In view of all the evidence in the case, I instruct you that so far as the blooms are concerned, there was no such change of possession as should have been made at the time of the transaction between the parties; that they remained in the possession of Mr. Cornog an unreasonable length of time, without any change of possession, or such a change of possession having taken place as is required by law; that the blooms having thus remained in the possession of Mr. Cornog, they were subject to the execution of his creditors, or that of the First National Bank of Honeybrook, and that your verdict, in respect to the blooms, should be for the defendant. It appears that the pig-iron was purchased by the Warwick Iron Company, and that before it could be sold in the market, it had to be manufactured into blooms. The pig-iron remained at the forge of Mr. Cornog, and it was his business to convert it into blooms. It was perfectly proper that the parties

should agree to allow the pig-iron to remain at Mr. Cornog's forge, for the purpose of being converted into blooms. It was stored upon his premises, and it was not necessary to remove it from there, and therefore if that iron was left at the forge for the purpose of manufacture into blooms, to enable it to be sold in the market, the parties had the right to enter into such an agreement. There is also evidence in the case showing that the plaintiffs in the execution, the First National Bank of Honeybrook, had knowledge that the pig-iron levied on by the sheriff had been sold by Mr. Cornog to the Warwick Iron Company. It appears that information of that fact was given to the bank soon after the sale to the Warwick Iron Company. If you find that there was a bona fide sale of the pig-iron by Mr. Cornog to the Warwick Iron Company, the agreement between the parties being that the pig-iron should be left in the possession of Mr. Cornog for the purpose of manufacture into blooms, that the market at that time was unfavorable for the manufacture and sale of blooms, that the pig-iron therefore continued to remain in the possession of Mr. Cornog until the time of the levy, the pig-iron would not be subject to the levy of the execution of the bank." The jury found for the plaintiff for the pig-iron, and the defendant for the blooms. Plaintiff brings

error.

W. M. Hayes and Miller D. Evans, for plaintiff in error.

It is well settled by this court that "in determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required." Crawford v. Davis, 99 Pa. St. 576. "In considering what is actual delivery, the nature of the property, and circumstances attending the sale, and whether the property is capable or not of easy delivery, must be taken into account." Barr v. Reitz, 53 Pa. St. 256. "Where, from the nature of the transaction, possession either could not be delivered at all or at least without defeating fair and honest objects intended to be effected by the transaction, the case may be regarded as an exception to the rule." Born v. Shaw, 29 Pa. St. 288. "The question is, did the vendor do all that might be reasonably expected in the case of a real and honest sale?" McKibbin v. Martin, 64 Pa. St. 352. Mr. Justice PAXSON strikes the key-note of this reform in the law, when, in delivering the opinion of this court in Evans v. Scott, 89 Pa. St. 136, he says: "There was a time when this ruling [title to personal property, though good as between parties is fraudulent as against creditors] might not have been error. It could have been sustained under the earlier cases of Clow v. Woods, 5 Serg. & R. 275; Babb v. Clemson, 10 Serg. & R. 419; Hoffner v. Clark, 5 Whart. 545; Brawn v. Keller, 43 Pa. St. 104; Steelwagon v. Jeffries, 44 Pa. St. 407. But there is a line of authorities which, to some extent, has modified the doctrine of those cases. See McVicker v. May, 3 Pa. St. 224; Forsyth v. Matthews, 14 Pa. St. 100; Hugus v. Robinson, 24 Pa. St. 9; Dunlap v. Bournonville, 26 Pa. St. 72; Billingsly v. White, 59 Pa. St. 464." We welcome the newer and better statement of the law, as it was laid down in Crawford v. Davis, and as restated so recently as in May last, when this court say, "A change of the location of the property is not, in all cases, essentially necessary. Due regard must be had to the character of the property, the nature of the transaction, the position of the parties, and the intended use of the property." Cessna v. Nimmick, 4 Atl. Rep. 193.

Alfred P. Reid, for defendant in error.

It is well established that when there is no delivery or change of possession, the sale is fraudulent in law as to creditors, and the court is bound to so declare it. Chief Justice GIBSON, in Clow v. Woods, 5 Serg. & R. 275, ex

amined the whole subject and enunciated these positions with great force and clearness, and decided that there is no difference in respect to the rule between absolute sales and conditional sales or mortgages, although thereby "the fair and honest object of the parties" was defeated. Justice PORTER says: "Clow v. Woods was a great case for us in Pennsylvania, and saved us from a confusion which has tormented the courts of several other states." Chase v. Ralston, 30 Pa. St. 541. Justice SHARSWOOD says: “Clow v. Woods, decided by this court in 1819, is the magna charta of our law upon this subject.' McKibbin v. Martin, 64 Pa. St. 356. And in the same case, the law upon the subject is summed up thus: "Whenever the subject of the sale is capable of an actual delivery, such delivery must accompany and follow the sale to render it valid against creditors. The court is the tribunal to judge whether there is sufficient evidence to justify the inference of such a delivery. But it often happens that the subject of the sale is not reasonably capable of an actual delivery, and then a constructive delivery will be sufficient. In such cases, it is only necessary that the vendee should assume such control of the subject as would reasonably indicate to all concerned the fact of the change of ownership. Where nothing of the kind has taken place, it is the duty of the court to pronounce a mere symbolical delivery to be insufficient." The more recent cases on the subject agree that there must be a delivery. Justice PAXSON, in Pearson v. Carter, 94 Pa. St. 159, recognized the doctrine that change of possession was necessary. From July 17, 1884, to August 21, 1885, when the levy was made, the blooms remained in the exclusive possession of the vendor precisely as before the sale. No excuse is given for this, except the convenience of the vendee. The sale was therefore a fraud in law upon the creditor, and the court was bound to so declare and direct a verdict for the bank, as was done.

PER CURIAM. In this case we are asked to overturn the whole doctrine of constructive fraud in the sale of chattels, and as we are not prepared to do this, we must affirm the judgment of the court below. The judgment is affirmed.

WANGER v. HIPPLE.

(Supreme Court of Pennsylvania. March 19, 1888.)

1. EASEMENTS-PRIVATE WAY-LICENSE-ADVERSE USER-BURDEN OF PROOF. The burden of proof is on defendant to show that the use of a private way across his land by plaintiff was by license, and not adverse user, as claimed.

2. SAME-ADVERSE USER-HOW DEFEATED.

When plaintiff claimed a right of way across defendant's farm by adverse user, the fact that defendant used the same lane did not operate to defeat plaintiff's claim.

8. EVIDENCE-WEIGHT-INSTRUCTIONS.

It is not error to charge a jury that, in considering testimony of a casual conversation held 27 years ago, they should consider the length of time that has elapsed. Error to court of common pleas, Chester county.

Action by Lawrence Hipple against Abraham Wanger, to establish a right of way over defendant's farm by adverse user, from 1817 until the lane was obstructed, one year before suit brought. There was evidence that it had been so used. The court instructed the jury that the burden of proof was on the defendant to show that the use was by license; that because the lane used by plaintiff across defendant's land had also been used by defendant, it did not operate against plaintiff's claim; and that in considering a casual conversation with plaintiff's grantor 27 years ago, the length of time since elapsed should be considered.

W. M. Hayes and A. Wanger, for plaintiff in error. A. F. Reid, John H. Brinton, and W. B. Waddell, for defendant in error.

v.13A.no.1-6

PER CURIAM. It is hard to understand why the defendant should complain of the rulings of the court below. They are as favorable to him as he had any right to expect, and in some of them complaint might well come from the other side. Hipple's right of way was established beyond controversy, and the attempt to break down that right by proof of user under a license was a total failure, and so the court might have instructed the jury. Judgment affirmed.

BARKDOLL v. PENNSYLVANIA R. Co.

(Supreme Court of Pennsylvania. March 19, 1888.)

MASTER AND Servant-INJURIES TO BRAKEMAN-Knowledge of DEFECTIVE CAR. Where a brakeman, knowing a car is broken, and unsafe to couple, is warned not to couple it, and is killed while attempting to do so, the company is not liable for his death.

Error to court of common pleas, Montgomery county; B. M. BOYER, President Judge.

Action by Ida Barkdoll, widow of Reno L. Barkdoll, against the Pennsylvania Railroad Company, for damages for the death of her husband, killed while in the employ of the road. The deceased was crushed in attempting to couple two cars; one of which was broken, and marked "For the shop." His attention had been called to the condition of the car, and he had been warned not to couple them in the ordinary way, but from the top. The court refused to allow plaintiff to show that, when dying, the deceased stated it was not his fault. The jury found for defendant, and plaintiff brings error.

H. U. Bruner and G. N. Corson, for plaintiff in error. Charles H. Stinson, for defendant in error.

PER CURIAM. The principle of law that the employer is bound to furnish his employes safe appliances and machinery with which to do their work is undoubted. But it is just as certain that when the employe discovers that the machine about which he is employed is dangerous, and still continues to use it, he takes upon himself the risk of any accident which may result from its use. Now, Barkdoll, being a brakeman, certainly knew that the broken car was unsafe to couple in the ordinary manner; hence it was his business to refuse to put himself in a dangerous position, but, having done so, he assumed the responsibility, and the court below properly refused to allow the consequence of the accident to be charged on the company. The judgment is affirmed.

LOWER PROVIDENCE LIVE-STOCK INS. Ass'N v. WEIKEL.

(Supreme Court of Pennsylvania. March 19, 1888.) APPEAL-REVIEW-JUDGMENT ON POINT RESERVED.

Judgment on a point reserved cannot be reviewed unless excepted to.

Error to court of common pleas, Montgomery county.

Appeal from justice of the peace in an action by James R. Weikel against the Lower Providence Live-Stock Insurance Association, on a policy of insurance, for the loss of a mare. Declaration in covenant. Pleas, covenants performed absque hoc, etc.; non est factum. Verdict for plaintiff below, subject to point reserved by the court as to the suffciency of the notice of loss. Judg

'If an employe knows that materials with which he works are defective, and he continues his work without objection, and without being induced by his employer to believe that a change will be made, he will be deemed to have assumed the risks of such defect. Railway Co. v. Peavey, (Kan.) 8 Pac. Rep. 780; Worden v. Railroad Co., (Iowa,) 3 N. W. Rep. 629.