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lar counties is a personal privilege, which is waived if not claimed at the proper time and in the proper manner. If suit is brought in the wrong county the proper remedy is by motion for a change of venue, and not by demurrer. Watts v. White,

13, 11

2. The application, on account of the prejudice of the judge, need not be in the form of a petition. It may be allowed upon affidavit. Risto v. Harris,

COAL.

15, 53

1. Sale, by shipper, conditioned on receipts from mines.—A contract by vendor to ship coal as soon as it is received from the mines, with a proviso that the contract is not to bind if the coal company fail to deliver it to the vendor according to special arrangement recited, calling for immediate delivery, is a conditional contract. The coal company failing to deliver to the vendor, vendor is not bound to ship. Neldon v. Smith,

2, 370

2. Subsequent receipts of shipper-Option.-If coal is received from the mines after the time named in the contract with the coal company, and intended in the contract between the parties, the seller is not bound to deliver it, nor is the buyer bound to receive it. The buyer has not an option to take it for the price named in the contract. Id. 3. Vendor and purchaser-Coal on wharf.-Where the owner of coal lying on the wharf orders the wharfinger to deliver it to a purchaser, and the wharfinger agrees to deliver upon the purchaser paying the wharfage, the delivery is complete, so far as an execution creditor of the vendor is concerned. Boswell v. Green, 2, 363

4. Breach of contract-Waiver.-In suit upon a coal contract for damages on account of the inferior quality of the coal delivered, and the failure to deliver within the time named in the contract, the defendants insisted that both claims were waived; the evidence was conflicting. Held, that the question of waiver was properly left to the jury. Merrimack Co. v. Quintard,

5. Sale of coal "found." Jewett v. Spencer,

mers,

2, 346

2, 499

6. The words "screened coal" construed. Mercer M. Co. v. McKee's Adm'r, 5, 531 7. Screened coal, nut coal and slack, defined. Williams v. Sum15, 246 8. Coal "won."—It seems that coal is "won" when it is put in a state in which continuous working can be forwarded in the ordinary way, but not when water is reached simultaneously with the coal, so as to necessitate stoppage to provide sufficient means of drainage. Lewis v. Fothergill, 15, 272

COLLIERY.

1. Contract between mining company and transporting company construed. Hazleton Co. v. Buck Mt. Co., 2, 389 2. Sale of colliery—Parol evidence.—In an action on a contract for the sale of a colliery for a gross sum of money, to be paid at a certain rate per ton on the first coal mined therefrom, until the full consideration was paid, parol evidence is admissible to prove that at the time of the

COLLIERY. Continued.

execution of the contract it was agreed between the parties that the vendees should not be bound to mine the necessary amount of coal, and that the vendor should take the risk of their doing so; the English rule that parol evidence is inadmissible to vary the legal operation of an instrument does not obtain in Pennsylvania. Chalfant v. Williams, 2, 548 3. Benefit of working shaft confined to lands of party sinking it.— (Where the sinking of the shaft was parcel of the consideration of a sale and had relation to other lands of the vendor.) Leavers v. Cleary, 2, 618 4. Colliery, a trading concern.-A colliery is not only an enjoyment of the estate, but, in part, carrying on a trade. Dudley v. Warde, 6,34; Wren v. Kirton, 2, 408; Williams v. Attenborough, 2, 410 5. Custom as to coal pillars controlled by special contract. Randolph v. Halden,

9, 29

6. Appurtenances to coal bank.—The lease of a coal bank will carry with it the drifts, platforms and hoppers used in working it, as appurtenant, but the principal thing granted is the right to mine coal, and not the drift or passage leading into the mine. Tiley v. Moyers, 15, 259 COMMON LAW.

1. The common law adapts itself to the circumstances and necessities of the community. Hale Co. v. Storey County, COMMON CARRIER.

14, 115

1. Liability for refusal to carry.-Whether a common carrier of goods and passengers merely can be made liable in an action for refusing to carry gold dust, query? Fay v. Steamer New World, 2, 417 2. Negligent unloading of coal.-A railroad corporation does not discharge itself of its duty as a carrier by merely bringing goods to the terminus of its road. It is bound also to unload them with due care. Rice v. Boston R. R.,

2, 419

3. Construction of special contract between pipe line and railroad company. Oil Creek Co. v. Penna. Co., CONDITION.

2, 421

1. Condition subsequent—Failure to perform forfeits estate. Adams v. Ore Knob Co., 3, 183

2. Breach of condition-Re-entry.-In such a case, when the grantors remained in possession of the premises, upon the breach of the condition they became revested with the estate conveyed, unless they waived the forfeiture, and there was no need of a clause reserving the right of re-entry for the breach.

Id.

3. Waiver of breach.—Mere silent acquiescence in an act which had constituted a breach of an express condition would not amount to a waiver of the right of forfeiture for such breach. Id.

4.

Conditional purchase of mine-Forfeiture. Gordon v. Swan,

3. 84 5. Covenants construed as conditions.-The right of re-entry being attached to covenants, gives them the force of conditions. Chamberlain v. Parker, 10, 145 6. Pleading conditions performed.-The general allegation that

CONDITION. Continued.

plaintiff has performed all and singular his agreement and covenants with defendant is a sufficient averment of the performance of conditions precedent. Moritz v. Lavelle,

CONFUSION.

16, 236

1. Agent confounding his principal's property with his own, charged with the whole, except what he can prove to be his own. Lupton v. White,

2, 430

2. Directions to master.-The court refused, in such a case, a prospective direction to admit books not legal evidence, usual in a fair case, as where from want of notice of an adverse claim, a strict account can not be given, merely giving liberty to apply upon any question of evidence. Id.

3. Conversion by mixing, melting and manufacturing. Redington v. Chase,

2, 439

4. Preventing admeasurement of damages.-If a party entitled under a contract to receive a profit from another, by his own act, so confound the measure of that which he was to receive that it can no longer be ascertained, he vacates his whole claim. Pringle v. Taylor, 2, 458 5. Burden of proof rests upon the party causing the mixture. Butte Canal & D. Co. v. Vaughn, 4, 552

6. Mixture of coals by the licensee's own act.-He was not entitled to an inquiry as to how much the selling price was affected by the mixture. Rokeby v. Elliot,

8, 651 7. Interest.-Held, that interest at five and not at four per cent ought to be allowed on the expenses of winning. Id. CONSIDERATION.

1. Failure of oil well.-The fact that an oil well sold, fails to produce enough to justify working it, is not a failure of consideration. Penniman v. Winner,

2, 449 2. Construction of lease with regard to implied benefits to result to that part of the lode not demised. Townsend v. Peasley, 2, 612

3. Consideration of facts construed to amount to consideration for a promissory note. Savage v. Ball,

4. Want of mutuality is no defense except in cases of executory contracts. Grove v. Hodges,

2, 579

2, 699

5. Inadequacy of consideration without fraud.--Gross misconception of the value of a purchase is not sufficient to set the purchase aside, where the means of ascertaining the value are left open to the vendee, and there has been no deception practiced by the vendor. Warner v. Daniels, 6, 436 6. The "prospect," the inducement of purchase.-Mines are bought and sold on the "prospect," not on the warranty. Tuck v. Downing, 7,.84

7. Release of uncollectible claim, no consideration.-The release of a claim for damages upon alleged breach of an unlawful covenant, reserved against a coal lessee, is not a valid consideration for a new contract. Crawford v. Wick, 8, 542 8. Extrinsic consideration.-A consideration may be shown by evidence, extrinsic to the terms of the contract. Hurd v. Gill 9,306

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9. Fraud that impeaches the consideration of a promissory note constitutes a defense to an action at law on the note. First Nat. Bank v. How,

12, 134

10. Failure or want of consideration must be specially pleaded in an action on a promissory note. Munro v. King,

12, 160 11. Consideration in prospecting lease-Warranty.-Under a prospecting lease wherein the lessee agrees to pay a royalty or a fixed sum to be allowed as advance royalty, there is no implied warranty that the coal sought for when found shall be "good, marketable, merchantable coal." The consideration will be applied as for the use of the land. Fort Scott Co. v. Sweeney,

12. Consideration payable out of mine. Ray v. Hodge, 13. Obligation in such case to work the claim. Id.

12, 166

15, 371

14. Mutuality is essential to a contract; if no basis appears upon which one who has taken a lease can charge others with its obligations, the latter can not charge him with having taken it in the common interest and claim rights under it. Pierce v. Pierce,

15, 675 15. The real consideration for a contract may be shown, although the contract states only a nominal one. Waterman v. Waterman, 15, 657 16. Adequacy of consideration for a mining venture.—Where a party advances money to develop certain mines, for which he is to be repaid out of their first product, and receive in addition an undivided fractional part of the mines: Held, that the contract can not be avoided on the ground that the consideration was inadequate. Id.

17. Idem.-On the same state of facts Held, that the contract can not be avoided on the ground that the property to be conveyed is uncertain, or that the performance of the contract would work hardship. Id.

CONSPIRACY.

1. Acts of conspirators.-There was evidence that B. & S. acted in concert and made false statements in procuring the subscription of M. and others. Evidence of the acts and declarations of B. & S. or either of them, either in the presence or absence of M., if tending to throw light on the transaction or corroborate testimony already in, was admissible. McCabe v. Burns,

2. Act of one binds all. Page v. Parker,

6, €65 6, 544

3. Evidence against one conspirator tells against the other, there being evidence that the purchase and sale of land was the combined act of two parties. Simons v. Vulcan Oil Co., CONSTITUTION.

6, 653

1. Declaratory laws, as such, are unconstitutional. Union Iron Co. v. Pierce,

CONTEMPT.

12, 20

1. Proceeding in contempt to protect private rights.-Where the proceeding by attachment for contempt is in substance to secure the rights of the party injured (as in case of defendants continuing tɔ mine while under injunction), the court regards the substance and not the form, and will issue mandamus to compel the court below to inquire into the acts charged. Merced M. Co. v. Fremont, 7, 309

CONTEMPT. Continued.

2. Proceedings in contempt are in their nature criminal. Vanzandt v. Argentine M. Co.,

7, 634

3. Proceedings in contempt are affected by the invalidity of the original orders. Brennan v. Gaston,

7,426

4. Injunction modified.—What not a contempt.-When an injunction, granted on an ex parte application, was modified on motion of defendant, without notice to plaintiff, on defendant's giving bond, held, that subsequent acts of defendant, in violation of the original injunction, were not in contempt. Fremont v. Merced M. Co., 9, 659 CONTINUANCE.

1. Continuance (on discretionary grounds) not the subject of exception. Gear v. Shaw,

7, 643

2. Affidavit for continuance used upon trial.-An affidavit for continuance is not to be treated by the court as a part of the record, and can only be used upon the trial, if at all, when introduced by one of the parties for some legitimate purpose. Campbell v. Rankin, 12, 257 CONTRACT.

A-PARTIES.

B-EXECUTION-DELIVERY.

C-CONSIDERATION.

D-CONSTRUCTION.

E-PERFORMANCE-ENFORCEMENT-CONDITION.
F-ABANDONMENT-RESCISSION-SURVIVAL-ESTOPPEL.

G--PUBLIC POLICY.

H--EVIDENCE.

I--RATIFICATION.

J-MEASURE OF DAMAGES.

K-MISCELLANEOUS.

A. Parties.

1. Married woman's contract void. Shaver v. Bear River Co.,

2, 538

2. Quartz mill subscription.—Certain persons subscribed money to build a quartz mill, in which all the subscribers were to be interested, and the money was to be paid in such manner and at such times as the majority of the subscribers might order. Held, to be a subscription only for the mutual benefit of all the subscribers. Wheeler v. Floral Co., 2,622

3. Mutuality in subscription and compliance with its terms are necessary to its recovery. Id.

4. Liability to assignee. --This liability of the principal is the same to the assignee of the demand, even if the assignee had notice before the goods were sold that the agency had ceased. Van Dusen v. Star Quartz Co., 3, 20

5. The situation of contracting parties at the time of contracting may be considered in interpreting their acts. Creighton v. Vanderlip,

VOL. XVI.-22

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