any rate the County is not liable for the cost of | be paid as if the trial were in any other court the defendant's subpena, thirty cents. having jurisdiction. Commonwealth v. Evans, 1 Kulp, 426; Wayne Co. v. Waller, 90 Pa. 99. Mr. Justice Trunkey delivered the opinion of the court: It has long been the policy of the Commonwealth not to discourage good faith criminal prosecutions, nor to oppress innocent persons accused of crime, nor to make it the pecuniary advantage of magistrates to hold an accused person for trial. The Act of 1791 provides that when a person charged with crime is brought before a magistrate, and it appears that the charge is unfounded, upon his discharge the costs shall be paid by the city or county. In no case is the county liable for costs, unless made so by statute. Crawford Co. v. Barr, 92 Pa. 359. That decision is cited by the defendant as applicable to the pending question. But there the claim was by a justice of the peace for his costs accrued in a summary conviction, under the Act of March 24, 1878, P. L. 125. An offense under that statute is not indictable, and it is not a crime within the meaning of the word as used in the Act of 1860; nor is it within the operation of any statute which imposes payment of costs upon the county. All the offenses triable under the Act of 1861 are indictable; and when such offenses are tried on indictment, in case of conviction of the defendant and his legal discharge without payment of costs, the county shall pay the costs of prosecution. The offenses remain the same, the result of conviction is the same, except the statutory limit as to place of imprisonment, and the exemption of the county from payment of the bills of costs, when the conviction is before a justice of the peace. A change of tribunal, and a lawful conviction without the formality of indictment, the sentence to have like force and effect as if the proceeding were in the court of quarter sessions, do not relieve the county from liability for costs imposed where a con The provisions of the Act of 1860, so far as they relate to costs, are mainly re-enactments of prior statutes. Full power is given to the jury, to determine by their verdict in all misdemeanors, in case of acquittal, whether the prosecutor or defendant or county shall pay the costs, or whether the prosecutor and defendant shall pay the costs in certain proportions; "And in all cases of conviction of any crime, all costs shall be paid by the party convicted, but where such party shall have been discharged according to law, without payment of costs, the costs of prosecution shall be paid by the county." In all these cases the direction as to costs relate to convictions on bills of in-victed party shall have been discharged accorddictment. By the local Act of 1861, in force in many counties, jurisdiction is conferred upon justices of the peace, if the accused person shall plead guilty or demand trial before the justice, for determination of certain indictable offenses defined in the Act of 1860. When the accused person denies the charge and demands jury trial, such trial is conducted on similar principles as trials in the court of quarter sessions; "and the jury shall have the same jurisdiction and control over the payment of costs; Provided, That the county shall in no case be liable for either the prosecutor's or the defendant's bill of costs." With a single exception, the jury in one court have the same power as the, jury in the other. When the accused person pleads guilty, or the jury find him guilty, the justice shall pass sentence upon him, which shall have the full force and effect of a sentence pronounced in the court of quarter sessions, in like cases, except that imprisonment shall only be in the jail of the proper county. The result of the sentence is the same when pronounced on a plea of guilty, as when on a verdict of guilty, except that in one case certain costs have no existence which are made in the other. All the cases within the Act of 1861, are triable on indictment in the court of quarter sessions under the Act of 1860. Upon conviction of a person, of felony, in that court, if he fail to pay the costs, the county is liable therefor; and unless the county is so liable when such conviction is before a justice, the sentence in one forum has not the same force and effect as in the other. In a trial before the justice of the peace, the exception, that in no case shall the county pay the prosecutor's or defendant's bill, evidences an intendment that other costs shall ing to law, without payment of costs. The statute making the county liable is not repealed by implication. Although conviction may be without indictment, the statute in so providing makes no change in the law relating to the of fenses and procedure, other than is expressed. The defendant's bill is not payable by the County, and the fees for his subpena are included in his bill. This is recognized in section 63 of the Act of 1860, relating to criminal procedure, and in section 1 of the Act of 1873. The defendant insists that it is not liable for the cost of subpena, thirty cents, which was given to the party who was charged with the larceny; and that sum must be deducted from the claim. Judgment reversed; and judgment is now entered for the plaintiff for $4.35, with costs, on the case stated. William J. BARTON, Piff. in Err., V. Jonathan R. JONES et al. Plaintiff, an employee of the contractors for putting up the iron work in the construction of a building, in the performance of his duties rode on a bundle of the iron beams as they were carried up the outside of the wall by an engine at the top, for the time under the control of his employers, and having been carried over the top of the wall, was injured while being lowered by the engine to the floor of an upper story. Plaintiff thereupon sued his employers for damages, alleging that the engine was at the time, to the knowledge of his employers, operated by a new, inex perienced, and incompetent engineer without notice toor knowledge of plaintiff, and that the injury resulted from the negligence of such engineer. Held, on the evidence, that plaintiff was properly nonsuited. (Decided April 4, 1887.) JLY Term, 1886, No. 187, E. D. JULY Error to the Common Pleas, No. 4 of Philadelphia County, to review a judgment of compulsory nonsuit in an action to recover damages for injuries to the person, alleged to have been caused by negligence. Affirmed. This action was brought by William J. Barton, against Jonathan R. Jones and Samuel T. Benner, trading as Jones & Benner, to recover damages for injuries received by a fall, alleged to have been caused by the negligence of defendants and their servants. The following facts appeared before the court at the trial: and had received a few lessons in running this lower traveler. He appears not to have run either of the upper travelers prior to the accident. The three travelers and the yard engine were all owned by Struthers & Son, who were the contractors for erecting the marble, and who used them for their purposes. The various engineers were employed by them. The other contractors at the building, including Jones & Benner, were in the habit of hiring from Struthers & Son, as work of heisting was to be done, one or the other of the three travelers. When thus hired the engineer and traveler were under the control and direction of such contractor, who directed their movements. Struthers & Son assumed no control or direction while the hiring continued. Richard McCarthy was the general foreman of Jones & Benner, who had control of their work at the buildings and gave all the directions to the employees of Jones & Benner. The latter were rarely at the building. It seems that when the traveler was needed, he (McCarthy) hired it from Struthers & Son. Jones & Benner were contractors for putting up the iron structure of the public buildings in Philadelphia. Barton was in their employ, as a laborer whose duty required him to preOn November 7, 1882, he hired the west travpare large iron beams, from twenty to twenty- eler. Dupelle was absent from his work that five feet long, for hoisting, by piling them to- day and McGraw, for the first time, had been gether and fastening them by a chain, so that put in charge of it. Barton swore that he was a wire and hook, dropped from an overhead ignorant of the fact; that he supposed Dupelle engine called a traveler, which ran on a tram- was in charge; and that he would not have way located above the building, at a height of gone upon the pile had he known otherwise. 150 feet from the ground, could be thereto at- The foreman of Struthers & Son, one Lawtached. When the pile had been attached to rence, told McCarthy of the change of engithe traveler, he would stand on the edge of the neers, and that it would be necessary for his pile while it was being raised, so that he could men to be careful. The latter, however, hired push it away from the marble face of the build- the traveler, and gave no warning to Barton, ing, could signal the engineer as to the direc-whom he ordered to go upon the pile or bundle tion in, and the place to which, the pile was to be carried, and could, when it reached its destination, detach it from the wire. Barton had been engaged in this work at the public buildings for several years. The traveler was inclosed so that a man on the ground could not know who was in it. The engineer was guided in his movements by signals (wavings of the hand) given by the man who stood on the iron which was hoisted. These travelers were constructed differently from an ordinary yard, stationary or locomotive engine, having much additional and complicated machinery. They required special experience on the part of those who ran them. There were three of them at the building, two being at the height of 150 feet from the ground, one on the west, and the other on the east side of the building. These two were in constant use at the time of Barton's accident, and were run by engineers who had had charge of them for several years, and who were well known to Barton and to the other employees who had worked with them for a considerable time. There was a third traveler on the north side, which was only occasionally used, and never, so far as the testimony shows, in hoisting anything but stone. It was at a comparatively low elevation, being about ninety feet from the ground. Its regular engineer had died, and for perhaps a month it had been run, at infrequent intervals, by a man named McGraw, whose regular employment was the running of a stationary engine in the yard. McGraw had come to the buildings in the spring of 1882, of iron beams. Barton and one Owens, as they had often done before, mounted upon opposite ends of the bundle of iron beams, which weighed about three tons, and ascended in safety to the top of the wall, guiding the load so that it did not strike the timbers of the trestle and the marble work of the building in its ascent. On arriving at the top of the third floor wall, the engine was run in over the wall, preparatory to lowering the iron to the floor of that story. Upon the north or interior wall of the room into which the iron was to be lowered was a common bricklayers' scaffold, composed of pine planks extending about fifteen feet in height from the floor of the room. Plaintiff gave a signal to the engineer to lower, which was obeyed. Plaintiff either miscalculated the space necessary to permit the iron to pass or Owens, who was on the end nearest to the scaffold, neglected to guide it, for six inches of the end lodged for a moment upon the scaffold. Owens stepped off. The equilibrium was destroyed, and plaintiff slid from the lower end and fell to the floor below, causing the injuries for which this suit was brought. Plaintiff at the trial claimed that McGraw was incompetent, that the traveler was managed in a bungling and inexperienced manner, and was lowered too rapidly; and evidence was given to prove such contention. At the close of plaintiff's case a nonsuit was ordered, which the court in banc subsequently refused to take off and plaintiff took this writ, assigning such action of the court as error. Messrs. James H. Shakespeare and John G. Johnson, for plaintiff in error: Where an employee is engaged in a hazardous work, and there are matters increasing the hazard, known by the employer, or which ought to be known by him, but not known to the employee, it is his duty to communicate them to the latter; and for a failure to do so, in case injury results, he is responsible. Patterson v. Pittsburg etc R. R. Co. 76 Pa. 393; Rummell v. Dilworth, 1 Cent. Rep. 905; Wood, Master & S. §§ 349, 354-356; Strahlendorf v. Rosenthal, 30 Wis. 674; Pantzar v. Tilly Foster Iron Mining Co. 99 N. Y. 368. It is the duty of the employer to use due care either personally or through an agent in selecting experienced employees. Crispin v. Babbitt, 81 N. Y. 520; Wood, Master & S. pp. 723, 863,902; Laning v. N. Y. Cent. R. R. Co. 49 N. Y. 532; Ford v. Fitchburg R. R. Co. 110 Mass. 260; Pa. etc. R. R. Co. v. Leslie, 16 W. N. C. 322; Mann v. Del. & Hud. Canal Co. 91 N. Y. 500; O'Donnell v. Allegheny Valley R. R. Co. 59 Pa. 248; Wabash R. Co. v. McDaniels, 107 U. S. 459 (Bk. 27, L. ed. 607). The fact of McGraw's inexperience was so clearly shown that it must have been known to Jones and Benner, if they had used due diligence. 57 Pa. 341; Skerritt v. Scallan, 11 Ir. R. C. L. 389; MacDonnell, Master & S. 316. McCarty was not a coservant. error: Plaintiff cannot invoke the principle of respondeat superior, because the Messrs. Struthers were McGraw's superiors and not the defend ants. Wood, Master & S. § 317; Crockett v. Calvert, 8 Ind. 127; Quarman v. Burnett, 6 Mees. & W. 499; Michael v. Stanton, 3 Hun, 462; Patterson v. Pittsburg, etc. R. R. Co. 76 Pa. 393. McCarthy was but a fellow servant engaged in a common employment with the plaintiff. Del, etc. Canal Co. v. Carroll, 89 Pa. 374; New York etc. R. R. Co. v. Bell, 3 Cent. Rep. 576, 112 Pa. 400; Lehigh Valley Coal Co. v. Jones, 86 Pa. 433; Keystone Bridge Co. v. Newberry, 96 Pa. 246; Chicago etc. R. Co. v. Ross, 112 U. S. 377 (Bk. 28, L. ed. 787). The question whether the danger assumed by an employee is one incident to the employment, as well as who are fellow servants, is also for the court and not for the jury. Assop v. Yates, 2 Hurlst & N. 768; Shipp v. Eastern Counties R. Co. 9 Exch. 223. The possible negligence of McCarty to warn the plaintiff was a risk incident to plaintiff's employment arising from their relations as fel | was no error in ordering a compulsory nonsuit and in refusing to take it off. Judgment affirmed. William FAIRCHILD, Pilff. in Err., v. Henry S. FAIRCHILD. A demise of all the coal under the surface of a specified piece of land is a sale of the coal. (Argued April 15, Decided April 25. 1887.) JANUARY Term, 1887, No. 413, E. D., before Mercur, Ch. J., Gordon, Trunkey, Sterrett, Green and Clark, JJ. Error to the Common Pleas of Luzerne County, to review a judgment for the defendant in a case stated in an amicable action of assumpsit. Affirmed. The case stated was as follows: Now, January 5, 1887, it is agreed that an amicable action of trespass on the case in assumpsit in the above entitled cause be entered in said court, and the following facts are agreed upon as a case stated for the opinion of the court in the nature of a special verdict, either party reserving the right to a writ of error to the judgment of said court. In the months of July and August, 1873, John Fairchild, late of said county, being seised in fee in possession of some fifty acres of coal land situate therein, executed to the Susquehanna Coal Company, a so-called lease of the coal in and under said land, the same being duly recorded in the recorder's office of said county, and a copy of which is hereto attached and made part of this case, the same being marked "exhibit A." Shortly thereafter, and during the lifetime of the said John Fairchild, the said company, by means of shafts and slopes opening upon the surface of adjoining lands and connected with tunnels or subterraneous passages, entered upon and took possession of the veins and measures of anthracite coal under said fifty acres, and by means of gangways, headings, breasts or chambers, leading from said tunnels, slopes and shafts, and cut and driven into said veins and measures, began and have since continued, and are now continuing the mining, quarrying, removing, transporting, shipping and selling of the anthracite coal under the land described in said so-called lease. On September 17, 1879, the said John Fairchild died intestate, seised of said land, subject to said so-called lease, leaving to survive him & widow, Martha Fairchild, and by her five chilSykes v. Packer, 99 Pa. 465; Priestley v. Fow-dren and heirs at law-all of full age, namely: ler, 3 Mees. & W. 1; McCullough v. Shoneman, 105 Pa.169. low servants. Anna E. Fairchild, intermarried with William Fairchild, the plaintiff above named; Martha L. Fairchild intermarried with O. F. Ferris; John M. Fairchild, Henry S. Fairchild, the defendant above named, all of said county, and Alfred Fairchild, of the State of Michigan. On October 16, 1879, letters of administration on the estate of said John Fairchild were granted by the register of said county, to the said John M. Fairchild and the said Henry S. Fairchild, defendant, who on April 14, 1884, filed a partial account of their administration, | to any of the children of said Anna E. Fairwhich was confirmed by the orphans' court of child or their guardian. said county and distribution had thereon in said last named court; but said administrators have not yet filed a final account, and are unable so to do at this time by reason of certain uncollected debts due their estate for money loaned by their decedent. On January 20, 1883, the said Anna E. Fairchild died intestate, leaving to survive her a husband, Willaim Fairchild, the above named plaintiff, and by him four children and heirs at law, namely: Monroe Fairchild, of full age and W. H. Fairchild, Edna L. Fairchild, and Edith L. Fairchild, then and now minors, having for their guardian O. F. Ferris, duly appointed by the orphans' court of said county. William Fairchild, the plaintiff, is the administrator of the estate of said Anna E. Fairchild, and has not yet filed or settled an account of his administration. On January 31, 1883, the said Martha Fairchild, surviving widow of said John Fairchild, died intestate, leaving to survive her children and grandchildren heirs at law, namely: the said John M. Fairchild, Henry S. Fairchild, Alfred Fairchild and Martha L. Ferris, children, and the said Monroe Fairchild, W. H. Fairchild, Edna L. Fairchild and Edith L. Fairchild, grandchildren, being children of a deceased daughter, the said Anna E. Fairchild. Samuel Line of said county, is the administrator of the estate of said Martha Fairchild, deceased. On account of coal mined, removed, shipped and sold as aforesaid by the said, the Susquehanna Coal Company under said so-called lease during the four periods following, to wit: first, during the lifetime of the said John Fairchild; second, during the period from the date of his death to January, 1883, the date of the deaths of said Anna E. and Martha Fairchild, and third, from January, 1883, to January, 1885, and fourth, from January, 1885, to the present time, the said company has paid as so-called rents or royalties certain moneys as follows: for the first period it paid the said John Fairchild for his own use, and for the second, third and fourth periods it paid to the said Henry S. Fairchild, defendant, as agent or trustee for the use of the parties who should legally be thereunto entitled; and the said Henry S. Fairchild paid over said moneys received during said second and third periods as follows: during said second period he paid one third to the said Martha Fairchild, widow, and to himself and said Anna E. Fairchild, Martha L. Ferris, John M. Fairchild and Alfred Fairchild each one fifth of two thirds; and during said third period he paid one fifth each to himself and said Martha L., John M. and Alfred, two thirds of one fifth to said William Fairchild, plaintiff, and one third of one fifth to the four children of said Anna E. Fairchild in equal proportions, of whom three were represented by their said guardian, O. F. Ferris. During said fourth period the amount of said so-called rents or royalties paid by said company and received by said Henry S. Fairchild, defendant, for the uses aforesaid is, after deducting certain expenses paid for surveying, the sum of $17,360.42, of which no part has ever been paid to the plaintiff, William Fairchild or The said Henry S. Fairchild, defendant, and John M. Fairchild, administrators as aforesaid, have never accounted as administrators for any of the so-called rents or royalties received by the defendant as aforesaid. There are no unpaid debts against either of the estates of said John Fairchild, Anna E. Fairchild or Martha Fairchild, and each died solvent, irrespective of any interest in said coal land-so-called lease or royalties. If, under the facts as above stated, the court be of the opinion that said sum of $17,360.42 is, in contemplation of law, to be regarded as rent, or of the nature thereof, accruing during the fourth period, supra, and incident to and issuing out of a coal estate, in the land described in said so-called lease, remaining in said John Fairchild at the time of his death, and descending to his heirs at law subject to the interest of his said surviving widow, Martha Fairchild, under the intestate laws of this Commonwealth, and that on the death of the said Anna E. Fairchild her surviving husband, the plaintiff, became entitled as tenant by the cur tesy to the undivided one fifth of said coal estate subject to the interest of said Martha Fairchild, surviving widow, then judgment to be entered for the plaintiff for the sum of $3,472.08. But if the court be of the opinion that the plaintiff, as surviving husband aforesaid, by reason of said Martha Fairchild's survivorship after the death of said Anna E. Fairchild, became entitled as tenant by the curtesy to only an undivided one fifth of an undivided two thirds of said coal estate, then judgment to be entered for the plaintiff for the sum of $2,314.72. If, however, the court be of the opinion that said sum of $17,360.42 is, in law, to be regarded as purchase money or in the nature thereof of real estate sold by the said John Fairchild in his lifetime, and collectible by his said administrators, to be by them accounted for as such to the orphans' court and distributed by the latter as personal estate of the said John Fairchild, deceased, to his four surviving children and to the estates of his deceased daughter, Anna E. Fairchild, and of his deceased widow, Martha Fairchild, according to the intestate laws of this Commonwealth, then judgment to be entered for the defendant. The costs to follow the judgment. "Exhibit A," to which reference was made in the case stated, was as follows: This indenture, made the 25th day of July, 1873, between John Fairchild, of the Township of Newport, Luzerne County, Pennsylva nia, of the one part, and the Susquehanna Coal Company, of the other part, Witnesseth: that the said John Fairchild, in consideration of the covenants to be kept and the rentals to be paid by the said Susquehanna Coal Company, hath demised, leased and to mine let, and by these presents doth demise, lease and to mine let unto the said Susquehanna Coal Company and their successors and assigns all the anthracite coal in, under and upon all that certain piece or parcel of land situate in the Township of Newport, Luzerne County, aforesaid, bounded and described as follows: Beginning in the line between lots Nos. 2 and 3 of the first tier, first division of lots in said township, at a common | upon the coal in place or as it is mined; sixth, corner of the land hereby demised and land that all the mining operations shall be connow or late of Solomon Fairchild, thence along said line north six and a quarter degrees west sixty-two rods to a corner in the center of the public road; thence along the center of said public road by its several courses and distances to the township line between Hanover and Newport; thence along the said line south seventeen and a quarter degrees east one hundred and twenty-five and four tenths rods to a corner of lands now or late of Solomon Fairchild, and thence along the said land south seventy and a half degrees, west eighty-four and six tenths rods to the place of beginning, being parts of lots Nos. 1 and 2 in the first tier of the first division of lots in the certified Township of Newport, and containing fifty acres one hundred and ten and six tenths perches strict measure. Together with the right to mine, quarry and remove all the coal in, under and upon the said tract of land but without opening thereto or transporting the same upon or across the surface of the said land. To have and to hold the said coal and the mining rights and privileges hereby granted with the appurtenances unto the said Susquehanna Coal Company and their successors and assigns until all the merchantable coal accessible by careful, prudent and skillful working shall be mined out and exhausted. And the said Susquehanna Coal Company, in consideration of the premises, do hereby for themselves and their successors and assigns covenant and agree to and with the said John Fairchild and his heirs, executors, administrators and assigns, in manner as follows, to wit: first, that the rental for all coal mined under this lease shall be at the rate of twenty-five cents per ton of the size and pounds hereinafter specified; second, that for all coal mined and removed during the year ending July 1, 1874, they will pay at the said rate of twenty-five cents per ton; that for the year ending July 1, 1875, and for and during each and every subsequent year during the term, they will mine and remove not less than 12,000 tons of coal, or failing so to do will nevertheless pay for such number of tons, so that the minimum annual rental shall not be less than $3,000; Provided, however, That if during any year such minimum annual rental shall be paid and sufficient coal at the rate aforesaid shall not be mined and removed, the deficit may be mined and removed in any subsequent year of the term; third, that all the rentals under this lease shall be payable quarterly, to wit: on the first day of October, January, April and July in each year; fourth, that under this lease a ton shall consist of 2,240 pounds, and that the rentals aforesaid shall be payable on all coal which will pass over a screen of a half inch mesh. All coal passing through a screen of such dimension shall be regarded as pea coal," and such coal may be used free of charge for the purpose of driving the machinery by which the said coal is mined and prepared, and shall be free from rental except when such coal shall be actually sent to market, when the rental shall be eight cents per ton, payable quarterly, in addition to the rentals aforesaid; fifth, that the said lessees shall pay all taxes or imposts, United States and local, which shall be assessed ducted with prudence, skill and care, so that all the coal may be won which can be taken without damage to the mines, and that in all gangways and chambers proper supports and pillars may be so left as to protect as well the surface as the overlying veins of coal; seventh, that the amount of coal mined and removed may be ascertained by reference to the weights returned by transportation companies for coal thus shipped and to the sales books for coal sold on the ground to local buyers, or by keeping an accurate account of the number of cars mined, making proper allowances for slate and dirt, verifying the accuracy of the accounts, if desired, by ascertaining the number of cubic yards of coal mined and removed; eighth, that as well the mines themselves as also the mining, shipping and sales books of the said lessees shall at all proper times be open to the inspection of the lessor and his engineers and agents for the purpose of ascertaining the condition of the mines and the amount of coal mined and removed; and also that the said les sees will furnish from time to time, on the request of the said lessor, maps of the mines, showing their actual condition; ninth, that the said lessees shall and will furnish annually to the said John Fairchild, his heirs and assigns, at the chutes nearest to or most convenient of access for said lessor, his heirs and assigns, twenty-five tons of coal of such sizes as may be desired at the price of $1.50 per ton, upon which coal no royalty shall be charged; tenth, that it is specially understood and agreed that if at any time an installment of rent or any part thereof shall become due and remain unpaid for the space of sixty days, then and in such case the said John Fairchild, his heirs and assigns, having first given to the said lessees, their superintendent or agent, thirty days' notice of his or their intent so to do, may at his or their option declare the term of this lease at an end; and thereupon all rights of the said lessees, their successors or assigns, shall absolutely cease and be determined, and the said lessor, his heirs or assigns, may resume possession of the demised premises with the improvements and appurtenances by legal process, or summarily and without legal process, at his or their option. And in case a cause of forfeiture by reason of nonpayment of rent shall at any time arise under the aforesaid clause and such cause shall expressly or by implication be waived and the forfeiture be not enforced, the right of forfeiture shall be reserved and be in force whenever and so often as a new cause, by reason of the nonpayment of a future installment for the period aforesaid, shall arise. And it is further agreed by and between the parties aforesaid in manner as follows: that the said lessees, their successors and assigns, shall have the right to open through the surface of the said lands, the coal under which is hereby demised, such air shafts as may be necessary for the ventilation of the mines; provided, however, that they shall be placed at suitable distances from any dwelling house, and shall be made with as little damage as posssible and be properly secured upon the outside. |