stated in the offer. The owner might well as sume such a personal liability for the debt of the principal contractor, without intending to pledge the building as security also. His promise to pay a sub-contractor-and as we have shown the plaintiff has taken that position by his pleadings -if he will not abandon his contract is entirely consistent with an intention not to relinquish any right under the contract against liens. for an attachment compelling him "to comply with the decree of this Court," and to remove the switch. H. C. Webster, Esq., was appointed commissioner to take testimony upon the issue raised, and a considerable amount of testimony taken before him was submitted to the Court. The contention of defendant was that this switch was entirely within the roadway of the Pennsylvania Railroad Company. After the testimony The specifications of error are overruled and had been filed and argument had, the Court delivthe judgment is affirmed. April, '96, 18. S. H. T. April 14, 1896. Fullerton v. Peabody. Equity practice-Amended equity rules- Interpretation of decree. The action of a Court of equity in refusing an attachment prayed for against a defendant upon the ground of his alleged failure to comply with the terms of a final decree, must proceed upon the basis that the decree has been complied with. Such action is therefore not appealable, since the Court in which the decree was entered is the best interpreter of the meaning of such decree. The decree itself as entered and afterwards interpreted by the Court may be appealed from, but the act of interpretation alone cannot be. The provisions of the amended equity rules in relation to the hearing of equity cases before the Court do not apply where the lower Court takes testimony solely for the purpose of enabling it to determine whether or not its decree has been obeyed. In the case under consideration, the evidence submitted to the Court justified the decision, considered upon its merits. Appeal of S. R. Fullerton and Bettie H. Fullerton, plaintiffs, from the order of the Common Pleas No. 1, of Allegheny County, refusing a motion for an attachment against George L. Peabody, defendant, to compel him to comply with the final order of the Court previously entered. The bill was filed to compel the defendant to remove certain structures from the soil of a street dividing defendant's property and which street was intersected by the roadway of the Pennsylvania Railroad Company. When the case came to be heard, no defence was made, and testimony having been taken as to the amount of plaintiff's damages, which were found to be merely nominal, a decree was entered, requiring defendant to remove all fences, buildings, structures, etc., etc., which he had theretofore placed and retained on the street or easement described in the bill. Defendant having complied with this decree except as to a switch extending from the Pennsylvania | Railroad into his property, a motion was made ering no opinion, made the following entry in the case: "July 6, 1895, on equity list and motion refused." Plaintiff appealed, assigning as error the action of the Court in dismissing plaintiff's petition and in refusing the attachment prayed for. J. G. White, for appellant. The Court erred in the manner in which the case was heard and disposed of, since it was the duty of the Court under the equity rules to perform the duties formerly required of a master, and to cause the case to be heard as cases are now heard in Courts of law, where trial by jury has been dispensed with by the consent of the parties. The reference here is to the second section of the Act of April 22, 1874, P. L. 109, which provides that in such cases "the decision of the Court shall be in writing, stating separately and distinctly the facts found, . . . and the conclusions of law.” The amended equity rules further provide "that the findings of the Judge, both of law and fact, shall be filed by the prothonotary and become part of the record of the Court in said case." All proceedings in equity not in accordance with these rules are irregular and void. Cassidy v. Knapp, 167 Pa. 307. The decree in this case was conclusive as to plaintiff's right to have the obstruction removed which defendant had placed on said street or easement. The attachment could be refused only on the ground that the switch complained of was not in the said premises on said street or easement and therefore it did not interfere with plaintiff's enjoyment of the same. William Scott, (with him John Dalzell and George B. Gordon), for appellee. It is, of course, settled that the Supreme Court under its broad supervising power, has jurisdiction to review a proceeding for contempt in the Common Pleas. Hummel & Bishoff's Case, 9 Watts, 430. It is doubtful whether the Superior Court has jurisdiction of an appeal such as this, as its jurisdiction is limited to cases in which "the value of the real or personal property, or the amount of money really in con "oversy in any single action or claim, is not greater than $1000, exclusive of costs." In this case it does not appear by certificate of the Judge of the Court below, or otherwise, that this case is within the jurisdiction al limit. In re Misselwitz, I Pa. Super. Ct. 221. Whether a contempt of Court has been committed, and how it shall be treated, are questions for the discretion and judgment of that Court, and its decision will be interfered with only when there is a flagrant abuse of discretion. Rapalje on Contempt, page II, sec. 9. 3 Am. & Eng. Ency. of Law, 802. whether or not its decree has been obeyed. We are of the opinion, therefore, that this appeal is erroneously taken and should be dismissed. Even were this not so, and should we consider the case as if the appeal had been taken from the decree, we would have to affirm the Court below for the reason that there is sufficient evidence to justify the Court below in finding the fact that the switch is upon the line of the Pennsylvania the order dismissing plaintiff's motion for an atRailroad Company. Upon which finding of fact tachment is manifestly based. Decree affirmed and appeal dismissed, the costs to be paid by the appellant. Quarter Sessions - Liquor license-Distillery- No case has yet decided that under the Act of June 9, 1891, P. L. 257, any citizen of the United States of temperate habits and good moral character is entitled as a he may see fit to designate upon filing a regular petition matter of right to a distiller's license for any place that and bond. Only an arbitrary and unreasonable exercise of discretionary power by the Court of Quarter Sessions, as shown by the record, will justify a reversal of its action by an appellate tribunal. Gemas' Appeal, 169 Pa. 43, followed; Doberneck's Appeal, 1 Pa. Superior Ct. 99, distinguished and fol lowed. A distiller's license confers the privileges of a wholesaler so far as liquor manufactured by himself is concerned. He is not limited to sales to other dealers, but may sell in quantities not less than one gallon to any one. He is necessary for the accommodation of the public because may have these privileges without proving that his place he is a manufacturer. July 16, 1896. REEDER, J. A bill in equity was filed in the Court below asking for an injunction to restrain the defendant from occupying by his buildings, etc., a certain street in the city of Pittsburgh. An answer was filed by the defendant. When the cause came to be heard, a decree was entered by the Court below compelling the defendant to remove all obstruction from the street. This decree was entered without opposition from the defendant. After the entry of the decree the defendant removed all obstructions from the street except a switch leading from the Pennsylvania Railroad to the defendant's land. An attachment for contempt of Court was then asked for by the plaintiff because the defendant had not removed the switch. The defendant filed an answer to this petition in which he claimed that the switch was not upon the street but was upon land owned by the Pennsylvania Railroad Company. An examiner was appointed to take testimony, and after argument the Court below dismissed the motion, from which action this appeal is taken. We do not think the appeal is well taken. The refusal of the Court to issue the attachment is tantamount to a decla- The petition of appellant was in due form; ration that the switch is not within the terms of it set forth, inter alia, that E. P. Huntsits decree. The Court below is the interpreter berger was the owner of the property, and had cf its own decree, and from its action in deter-leased it to the petitioner. A remonstrance mining what is or is not included in its decree, cannot be appealed from. The decree itself as entered and afterwards interpreted by the Court can be appealed from, but the act of interpretation itself alone cannot be. We are also of the opinion that the equity rules of the Supreme Court do not apply to examinations of this character where the Court below takes testimony solely for the purpose of enabling it to determine Appeal of Levi M. Lauck from the decree of the Quarter Sessions of Cumberland County, in refusing the petition of the appellant for a distiller's license. was filed, setting forth that the Court in the year previous,, had refused a similar application for the same place, made by E. P. Huntsberger, the owner of the premises, and lessor to the present applicant, on the ground that the place did not distill but sold liquors of other manufacturers; that a two years' trial was given to that place and the parties concerned failed to do what they promised the Court. The license was refused. A petition was filed "And now January 28th, 1896, after a hearing, a by the applicant for a rehearing, which was de- license is refused for the reasons indicated in nied by the Court. This appeal was then taken. the foregoing opinion." Assuming for the purThe assignment of error covered the action of poses of the present discussion, that this order the Court in refusing the application. brought upon the record the reasons assigned The Court in a written opinion gave reasons by the Court in its written opinion, and made for the refusal of the license. them subject to review, it must also be assumed A. G. Miller, (John R. Miller with him), for ap- that the conclusions of fact upon which those pellant. reasons are based and which moved the discre The refusal must be for legal reason and based tion of the Court are correct. The evidence is upon competent evidence. not before us, and could not be considered if it were, because it is not part of the record. Briefly the facts as stated in the opinion are as follows: The owner of the distillery for which A legal reason for refusing the license would the license was asked is E. P. Huntsberger. He be that applicant is not a fit person; that he had was granted a license in 1893. When he applied a license revoked during any part of the for a renewal of his license in 1894, it appeared preceding year; if he is pecuniarily interested that no liquors had been manufactured on the in any other similar business, or if any other premises during the preceding year, and license person than the applicant is interested in the was again granted to him only after the failure business he proposed to conduct; if he has been to operate the distillery had been fully explained convicted in a proper court for violation of the by affidavit and assurances were given that the liquor laws, or if his application is not in due present application was in good faith. In 1895 form. he again applied for a license, but it appearing that the place had not been operated as a distillery the Court refused the license, saying inter alia: "It appears that the confidence of the Court None of the foregoing objections had been shown to exist, and the applicant's petition and accompanying bond are in lawful order. George Edward Mills and R. M. Henderson, for has again been misplaced and we will in conseappellee. In determining whether the place to be licensed is suitable or not, the Court has held that it would not grant a distiller's license to "a place" which had burned down and had not been rebuilt at the time the application was made. Petition of Obed H. Nordstrom, 127 Pa. 542. Also that it would not grant a distiller's license to a "place" removed from the location where the actual distilling is done. quence not again entrust him with a license. An applicant is not entitled to a license for a distillery which does not distill." If on such a record as this, we may look into the opinion of the Court to ascertain the reasons which moved it, we must take the opinion as a whole, and this history of what has occurred in preceding years is a part of it. When the present application four hundred persons residing in the vicinity was came on for hearing, a remonstrance signed by presented to the Court, in which it was suggested Johnston's Distiller's License, 13 Pa. C. C. 584. and alleged, among other things, that the Court The decisions quoted by the appellant: Gross' had no guarantee that the applicant would do License, 161 Pa. 344, and Gemas's License, 169 otherwise than the former applicant did, and Id. 43, are authority for the rule that there simply sell liquors by wholesale as did the other must be a hearing and a legal reason given. This proprietors, and that this application was "simprule relates to the procedure by the License ly the attempt to wholesale liquors under the Court. The Court gave a reason in this case and a legal one. guise of a distiller's license." The Court below could not, and evidently did not assume the truth of all the matters of fact alleged in the remonJuly 16, 1896. RICE, P. J. The proceedings strance, nor do we assume it. We refer to the in this case, as shown by the record, were en- allegations solely for the purpose of showing tirely regular in form. The only question for the propriety of an investigation as to other our consideration is whether the record shows matters beyond the citizenship and character of such a palpable and gross abuse of the discre- the applicant. No case has yet decided that untionary power vested in the Court below, as der the act of 1891, any citizen of the United would justify a reversal of its action by an ap- States of temperate habits and good moral characpellate tribunal, exercising the limited revisory ter is entitled, as a matter of right, to a distiller's jurisdiction given by the writ of certiorari. The license, for any place that he may see fit to desigorder by the Court below reads as follows: nate, upon filing a regular petition and bond. A proper exercises of judicial discretion might under Dobernich's Appeal. There the reasons for resome circumstances warrant, if it did not re- fusing the license were that (1) the place was not quire, an inquiry into the suitableness (not the necessary; (2) that the applicant was not a resinecessity) of the place, for the business. Was dent of the county; (3) that the owner of the in then an arbitrary or unreasonable exercise of premises (the brother of the applicant) while discretionary power, in view of the issue raised holding a license some eight years before, had by the remonstrance, and the manner in which been convicted of a violation of the law. We the place had been conducted by the owner, and held that these were not legal and valid reasons former licensee of the premises, for the Court to for refusing a brewer's license to the applicant. require satisfactory proof that the place could Here the license was refused, not because the be, and would be, operated as a distillery, and owner and former licensee had violated the law, to refuse the license because such proof was not but because the Court was not satisfied that furnished? We think not. A distiller's license the place could be, and would be, operated as confers the privileges of a wholesaler, so far as a distillery. The failure of the owner to so operliquor manufactured by himself is concerned. He ate it, although holding a license from the Court, is not limited to sales to other dealers, but may was a pertinent circumstance. The two cases sell in quantities not less than one gallon to any are radically different. one. Having regard to the expressed purpose Whether we would have reached the same conof the license laws, there is much the same rea- clusion that the Court below did, is not the son for regulating his business, when he sells question. The discretion, including the decision in such quantities, as for regulating that of the of questions of fact, is not vested with us, but wholesaler. He may sell liquor of his own in the Court of Quarter Sessions. manufacture, in original packages, of not less As we have had occasion to say in other cases, than forty gallons, without being licensed by it never was intended that there should be an apthe Court, but if he desires to sell in less quan- peal from the discretion of that Court to the tities, he comes within the regulating and re- discretion of the Supreme Court or of this straining provisions of the license laws and must Court. The question for us is whether there apply to the Court and must set forth in his was a clear abuse of discretion, a refusal of the application the particular place for which license license arbitrarily, and without reason, or for a is desired. The privileges conferred by a license reason which is clearly not a legal reason, and being so nearly like those which an ordinary which ought not to have influenced the action of dealer has under a wholesale license, the Legis- the Court under the circumstances of the particulature has seen fit to place it in the discretionary lar case. Notwithstanding the very earnest arpower of the Court to determine whether he gument of the appellant's counsel, we are not shall have them. But he obtains them on less convinced that this is such a case. The order of severe terms than are imposed on the wholesaler. January 28th refusing the license, was unconHe may have them without proving that his ditional and final. An application for a rehearplace is necessary for the accommodation of the ing, is like a motion for a new trial, and a republic because he is a manufacturer. Gemas's fusal thereof is not reviewable on appeal. Appeal, 169 Pa. 43; Doberneck's Appeal, 1 Pa. Superior Court 99. | The specifications of error are overruled and the order is affirmed at the costs of the appellant. April, '96, 25. Christner v. John. W. D. N. May 5, 1896.. Hence the Court ought to be satisfied that the place for which license is desired is a genuine distillery, where the applicant can, and will, conduct the business of a manufacturer only, and not that of a wholesaler, under cover of a distiller's license. The averments of the petition did not preclude inquiry as to those matters, and the conduct of the place of the owner and former licensee of the premises was pertinent thereto. This was not visiting the consequences of his derelictions and breach of faith with the Court upon his lessee, the present applicant, but was a Where notwithstanding a misdirection, goods are aclegitimate reason for a more rigid inquiry into tually delivered to the person, and at the place ordered, the suitableness of the place, and the bona fides there is no legal reason why either the plaintiff or the deof the application than under other circumstan- fendant should suffer loss, and therefore no room for the application of the maxim that the loss which must fall on ces might have been required. We do not one of two innocent persons must be borne by him whose qualify anything that was said or decided in accident or mistake was the cause of it. Delivery of goods- Misdirection of Charge of Court-Exceptions to-Failure to note-Filing of, nunc pro tunc. The question whether there was a mutual mistake of seems to be the 'Coke Company of Connellsville,' fact in an alleged settlement is one for the jury. Where the record shows neither an exception to the charge of the Court, nor that the copy filed was approved by the Judge, or filed by his direction, the appellee is entitled to have the case disposed of upon the record as it stands at the time the appeal is heard. The record cannot be supplied by a general rule of Court, or a general practice of the Judge to direct exceptions to be noted for both parties. Appeal of H. F. John, defendant, from the judgment of the Common Pleas of Somerset County, in an action by Herman Christner, to recover for certain lumber sold and delivered. The facts are stated in the charge of the Court as follows: and its place of business at the time was at the end of the track near Leisenring, and not Leisenring station but near by. The end of the track at that time, it seems, extended some little distance beyond the station. The defendant says the coke company refused to pay for the lumber, alleging they had never received it; and it is said, in answer to plaintiff's claim in this case, that the lumber failed to reach its destination, and so was lost, in consequence of the car being misdirected, as we have stated to you. "Now, how is that fact? As we have already remarked, the plaintiff does not for a moment "The plaintiff has brought this action to re- deny that there was an error in writing the shipcover from the defendant the price of a car load ping directions on the card which was placed of white oak lumber. There are a number of upon the car. The card did name Leisenring, facts connected with the case which are not at Pa., as the point of destination; and for all the all disputed. In the first place, the defendant, purposes of the common carrier, of the railroad on the 14th day of June, 1889, gave to the plain company, that would carry the car to Leisenring. tiff an order which reads as follows: 'Please cut Did it interfere with the consignment reaching and ship soon as possible to Coke Company of the particular point to which it was to go, namely, Connellsville, end track, Leisenring, Pa., 70 to the 'End of track, Leisenring;' and did the pieces, 10 by 10 by 12, (meaning 10 inches fact that the name of the consignee was incorsquare and 12 feet long) oak, to be good, solid recently given as 'The Connellsville Coke Comwhite oak. Hurry up and get this off soon as you pany' instead of 'The Coke Company of Concan, and oblige, truly, A. F. John.' nellsville,' interfere with the consignment reach"In pursuance of that order the plaintiff pre-ing the party for whom it was intended? This pared the lumber designated in it and placed it is the important inquiry in this case. upon a car of the Baltimore & Ohio Railroad, "The car was No. 4105 and it contained seventy at Pine Grove station, in this county. It seems pieces of prepared lumber 10 by 10 inches, 12 the plaintiff's son attended to the shipment of the feet long, of white oak. Now, Mr. John, the delumber, and he made a mistake in the direction fendant, as we have stated, says the consignee which he gave for its shipment. A card was denied receiving the lumber and refused to pay, offered in evidence which, it seems, the son filled and he never has paid, and that he so informed with the shipping directions, and instead of the Mr. Christner, the plaintiff; and that in pursuance directions placed thereon being to the 'Coke of that understanding the credit which had been Company of Connellsville, end of track, Leisen- already entered on Mr. John's books in favor ring, Pa.,' it was written to the 'Connellsville of Mr. Christner, was changed, charging back Coke Company, Leisenring, Pa.' Thus far the to him the price of this lumber which it was parties are agreed. There is no question about alleged had been lost through his negligence or these facts, plaintiff does not deny that the error was made in the name of the company and the particulars with regard to the point of destination. that of his son in shipping the lumber; and that that was at the time understood by both and fixed and agreed upon between them. Mr. John has also placed on the stand a gentleman "Now, the defendant not having paid the plain- by the name of Randolph, who says he was tiff for that car load of lumber, this suit is the general superintendent of the Coke Company brought to enforce its payment, and the defence of Connellsville, the consignee of this lumber, is set up that by reason of the misdirection in and he undertakes to say that the lumber was the shipping of the car the carload of lumber never delivered and that they never paid for it. was lost to the defendant and he never pro- And the reason which he assigns for not paycured pay for it from the parties to whom it was ing is that, in the first place, they could never to be sent. So that it becomes an important find any trace of the lumber having reached its inquiry to ascertain whether or not the carload destination, and principally because of the misof lumber reached the parties to whom it was direction in shipping, this company refused to intended to go and had been sold by Mr. John. pay and has not paid Mr. John for the lumber. The correct corporate name of the purchaser "On the other hand, the plaintiff has called |