take the place of another which had never been recorded, and had become vested in defendant by various assignments, some of which had never been acknowledged, offers by defendant upon trial tending to show that the second lease was given for the purpose of confirming and perfecting defendant's title under the first lease, and not in any way contradicting or changing that title, are material and relevant and should be admitted in evidence. The court held that it would be the perpetration of a gross fraud upon the manifest rights of defendant to permit the second lease to destroy and defeat his title under the first. Vanderlin vs. Hovis, 152 Pa., 11 (1892).

Sec. 115. A Specified Price "Per Acre" for Failure to Commence and Complete Requires Payment for Each Acre Leased.

Where an instrument conveying all the oil and gas under forty acres of land contained a clause leasing one acre for a test-well, and providing that, on lessee's failure to commence and complete operations, he should pay a specified price "per acre" until completion, it was held that the lease required the payment of the price for the entire forty acres in case of failure to make a test. Columbia Oil Co. vs. Blake,

13 Ind. App., 680 (1895).

Sec. 116. Lessee's Compromise with Third Party Assailing His Right to Drill Not a Dis

charge of Original Agreement with Lessor.

In an action to recover a bonus under an oil and gas lease, it appeared that prior to the execution of the lease the lessor had conveyed the coal under his land to a corporation, reserving to himself in the deed the

right to drill three wells for oil and gas through the coal. After the execution of this deed, but before the execution of the lease, the lessor conveyed portions of the surface of the land to other persons, without reserving to himself the right to drill wells upon the portions so conveyed. The lessee filed an affidavit of defence in which he averred that the corporation had denied the right of the lessor and his lessees to drill for oil and gas, and that under threat of suit, defendant had agreed to pay the corporation a certain amount for each well, and that subsequently the corporation had obtained an injunction restraining the drilling of any wells upon the land covered by the oil and gas lease. It was admitted that the first well had produced the amount of oil named in the lease as the basis for the payment of the bonus. Held, that the affidavit of defence was insufficient to prevent judgment. Chambers vs. Smith, 183 Pa., 122 (1897).

Sec. 117. Of What the Courts Will Take Judicial Notice.

Said the court in Brown vs. Spilman, 155 U. S. R., 670 (1895):

"These (the methods for operating for oil and gas; the means of their conduct to the points of consumption; the facts of the odor and noise incident to their production, etc.,) are matters within the common experience or knowledge of all men living in those portions of the country where oil and gas are produced, and courts will take notice of whatever ought to be generally known within the limits of their jurisdiction." Citing 1 Greenl. Ev., Sec. 6.

Sec. 118. Geography of the Country.

In Mossman vs. Forest, 27 Ind., 233, it was held that the courts will take judicial notice of the geography of the country, and in Board, etc., vs. Castetter,

7 Ind. App., 309; Hays vs. State, 8 Ind., 425, and Peck vs. Sims, 120 Ind., 345, it is said that the courts take judicial notice of the geography of the United States. In a number of other Indiana cases it has been held that the courts will take notice of the location of the cities and towns and in what counties they are situated. Columbia Oil Co. vs. Blake, supra.

But not of the exact limits and boundaries of the towns and cities. Grusenmyer vs. Logansport, 76 Ind., 549.

Nor the number of wards into which a city is divided. Moberry vs. Jeffersonville, 38 Ind., 198.

But, in Carr vs. McCampbell, 61 Ind., 97, it is held that it is judicially known as a part of the history of the State that "Clarke's Grant" is located in certain counties named. And, in Cash vs. Auditor, 7 Ind., 227, the court says that "it knows geographically that the Falls of the Ohio are local and in Clarke County." See, also, Ohio Oil Co. vs. Kelley, 9 Ohio C. C. R., 511 (1895).

Sec. 119. Words and Phrases—“ Paying Quantities "Usage and Custom of Trade.

An important case upon the phraseology of leases and of the evidence admissible in their construction, s that of Collins vs. Mechling, 1 Pa. Super. Ct. R., 594 (1896), where it was held that a stipulation in a lease that if oil is found in "paying quantities," the lessor is to be paid, in addition to hand money, the sum of $600 within thirty days, is not ambiguous. "The obvious intention was," said the court through WICKHAM, 7., "that if, for the period of thirty days after its completion, the well continued to produce oil

in such quantities as to make it profitable to operate it during that period, the $600 should be demandable." There is a great difference between a paying well," continued the court, “i. e., a well producing oil in paying quantities, and one that pays for itself. A mine for years may produce ore in paying quantities and be very profitable during that time, and yet, through a later depreciation in the value of the mineral extracted from the ore, or from accident or failure to yield enough ore, it may never repay its first

cost.'

It was further held that before a usage 'of trade or a custom can become so firmly imbedded in the law as to govern the rights of parties, it must be so certain, uniform and notorious as probably to be known to and understood by the parties entering into the contract. Citing Weld vs. Barker, 153 Pa., 465 (1893); Ambler vs. Phillips, 132 Pa., 167 (1890); Corcoran vs. Chess, 131 Pa., 256 (1890); Cope vs. Dodd, 13 Pa., 33 (1850). Cf. Clarke's Browne on Usages and Customs, Section 41 and cases cited. And an offer to show that a well producing oil in paying quantities has a known significance in the oil country, namely, a well that will return to the lessees the expense necessarily incurred in the drilling and operation of the lease, is defective when it fails to allege the usage as existing at the time the contract was made; where it fails to state what oil-producing country was meant, and that the usage set up was known to the plaintiffs, or that it was at least so noteworthy as to affect them with knowledge.

Further, an offer to follow proof of an alleged usage by testimony of so-called experts is properly rejected where it is proposed to show something that

experts could not by any possibility know, WICKHAM, 7., saying: "We think that the opinion of the experts, unless they were also soothsayers, would savor too much of conjecture." Cf. Bradford Oil Co. vs. Blair, 113 Pa., 83 (1886).

Sec. 120. Expert Testimony.

While on the subject, attention may be directed to the case of Denniston vs. Phila. Co., 1 Pa. Super. Ct. R., 599 (1896). The court cites approvingly Lineoski vs. Coal Co., 157 Pa., 153 (1893), and makes from Ins. Co. vs. Gruver, 100 Pa., 266 (1882), the following extract :

"How any person can be said to be an expert in that which is not and cannot be followed as a business, or in that which must necessarily result from observation of a character so general that it must be common to every person, we cannot understand. The opinion of a witness who neither knows nor can know more about the subject-matter than the jury, and who must draw his deductions from facts already in the possession of the jury, is not admissible. *** Were it otherwise, the opinion of jurors upon the most obvious facts might always be shaped for them upon the testimony of so-called experts, and thus a case be constantly liable to be determined, not by the opinions and judgment of the jury, but by the opinions and judgment of the witnesses."

Sec. 121.

Further of "Paying Quantities."

Said the court, in Blair vs. N. W: Ohio N. G. Co., 12 Ohio C. C. R., 78 (1896):

"Does this language mean that it is only so long as gas or oil is found in paying quantities in the first well drilled, and that, when it fails, the lease expires as to the entire premises? The whole premises are held by this lease for five years, and as much longer as oil or gas is found in paying quantities; not found in paying quantities in one well, but found in such quantities when proper and reasonable search is made for it."