[Pennsylvania Railroad Co. v. Fries.] the latter from all liability except for negligence. Of this there was not sufficient evidence to have submitted to the jury, and they should have had a binding instruction to find for the defendants. Judgment reversed. Durborrow's Appeal. 1. The fee bill in equity adopted in Philadelphia in 1844, was not extended by any law to other counties of the state. 2. The Act of February 14th 1857, which declares that the courts of Common Pleas in several counties shall have the "same chancery powers and jurisdictions which were then by law vested in the Court of Common Pleas or District Court of Philadelphia," did not carry the rules of those courts into other counties, but merely conferred the same powers and jurisdictions, among which was the right to make rules and regulate the taxation of costs. 3. The equity rules adopted by the Supreme Court govern in the courts of the state, and by the Act of May 4th 1864, express power is conferred upon the Courts of Common Pleas to establish a tariff of fees and costs in equity proceedings and cases. May-29th 1878. Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ. SHARSWOOD, J., absent. Appeal from the Court of Common Pleas of Huntingdon county: Of May Term 1878, No. 178. Appeal of J. R. Durborrow from the decree of the court dismissing his appeal from a taxation of costs by the prothonotary. The facts were substantially these: In Durborrow's Appeal, 3 Norris 404, wherein the Supreme Court reversed the decree of the court below, the opinion of the court concluded in these words, "The costs, including those collected on the writ of assistance, to be paid by the appellee.' Upon the return of the record to the court below, Durborrow, the appellant, filed the following bill of costs, which was taxed and allowed by the prothonotary: Musser, the appellee, excepted to this taxation, whereupon the prothonotary retaxed the same and allowed the items for printing the demurrer, answers and interrogatories, but disallowed those for drawing the same, in an opinion saying, "The items in the bill of [Durborrow's Appeal.] costs for drawing the demurrer, answers and interrogatories, are stricken out because there is no rule of this court and no rule among the equity rules of the Supreme Court, allowing them. And further, it is the opinion of the prothonotary, on examination of the authorities and old equity fee-bill cited, that the right of the defendant to costs for drawing his demurrer, if it ever existed under the practice in this county, is abrogated by the adoption of the new rules in equity practice of May 27th 1865. Prior to the adoption of these rules, as I understand it, the proceedings were filed in writing, and the party was allowed his costs for drawing them; but now the answer, &c., are required by the new rules to be printed, and the party is to be allowed his costs for printing, instead of drawing answer, &c. If this view of the case is correct, he would not be allowed for both printing and drawing his papers. Rule No. 14, mentioned, allows the costs of printing, and therefore costs taxed for drawing are stricken off. The item of $109 for paper-book is not allowed. No rule or authority under which it could be allowed was brought to the attention of the prothonotary, and it was principally claimed by defendant's counsel, before the prothonotary, as an item allowable, not under any rule or authority, but in the discretion of the court, which discretion the prothonotary does not think he has the right to exercise." The appeal of Durborrow from this taxation of costs was dismissed by the court below, and the taxation confirmed, when this appeal was taken, and this action of the court assigned for error. R. Bruce Petriken and George B. Orlady, for appellant.-By Act of June 16th 1836, Pamph. L. 10, the costs of all proceedings in equity were within the discretion of the court, which continued to be the practice until the Act of July 26th 1842, Pamph. L. 9, was enacted, making it the duty of the Nisi Prius Judge of the Supreme Court in Philadelphia "to make and establish a tariff of fees and costs in equity cases, and in all other cases in the said court, for services not provided for by the existing Acts of Assembly." In pursuance of which the Supreme Court and the Court of Common Pleas of Philadelphia county adopted an equity fee-bill. See Brightly's Equity Jurisprudence 735. Which equity fee-bill has remained unchanged, except "incidentally" by the rules of equity practice adopted by the Supreme Court of Pennsylvania, May 27th 1865, by the report of the commissioners, who concluded their report as follows: "The subject of costs has been only incidentally touched, as it did not appear to be within the province of the committee. The Court of Common Pleas of Huntingdon county has no equity rules, and have adopted, by custom, the rules and practice of the Supreme Court, and from these rules (No. 14) the prothonotary decided this case. The equity fee-bill adopted by the [Durborrow's Appeal.] Supreme Court (Brightly's Eq. Juris. 736), allows "for drawing bill, answer or other pleading, demurrer, exceptions, interrogatories, for every page of thirty lines, each of ten words, ten cents; and six cents per line for each subsequent page.' The rules adopted May 27th 1865, are silent on the right to costs for drawing, but in addition to the costs of the cause then allowable provide "the amount paid for printing shall be allowed as costs of the cause." The committee appointed "to revise and amend the rules of practice in equity cases" say in their report "that, except where such changes have been introduced, they have considered it better to adhere to the language and general scheme of the existing rules." Had they intended to annul the rule then in practice, providing for costs of drawing "bill, answer or other pleading," they would have plainly said so. The fee-bill and new rules are consistent with each other, and costs for drawing and printing are both allowable under them. Samuel T. Brown and R. M. Speer, for appellee.-No appeal lies from the decree of the Court of Common Pleas taxing costs: McCauly's Appeal, 5 Norris 187. The act of May 4th 1864, Purd. Dig. 601, makes it the duty of the judges of the District Courts and Courts of Common Pleas, to establish tariffs of fees in equity proceedings. This gave them a discretionary power as to costs in equity. No general tariff or fee-bill in equity was ever adopted by the judges of the Common Pleas of Huntingdon county, but the discretion vested in them was exercised in each particular case as it arose. That discretionary power was exercised in this case, and its exercise is not reviewable here. This is the principle decided in Spering v. Smith et al., 9 Phila. 277. The rule of the Supreme Court, requiring a paper-book to be printed, is for its own convenience, and no rule nor law makes the printing of the book a part of the costs in equity proceedings or at law. The judgment of the Supreme Court was entered June 3d 1878, PER CURIAM.-We find nothing to correct in the taxation of the costs below, at the instance of this appellant. The fee-bill in equity, adopted in Philadelphia in 1844, was not extended by any law to the other parts of the state. It was not until 1857 the equity jurisdiction was extended to the remainder of the state. The act declared that the Courts of Common Pleas in the several counties, in addition to the powers and jurisdictions then vested in them, should have "the same chancery powers and jurisdictions which were then by law vested in the Court of Common Pleas or District Court of the city and county of Philadelphia." This did not carry the rules of these courts into other counties, but merely the same powers and jurisdictions, among which was the [Durborrow's Appeal.] power under the general law to make rules of court regulating the taking of fees. The Supreme Court, by virtue of its powers, made a set of rules in equity to govern in the courts of the state, and in 1864, express power was conferred by the act of that year upon the Court of Common Pleas to establish "a tariff of fees and costs in equity proceedings and cases." The rules so adopted by the Supreme Court and several Common Pleas govern. Taxation affirmed. Pennsylvania Canal Co. versus Manning. 1. The Acts of May 16th 1857 and May 3d 1864, which provided for the sale by the state of its canals, and declared the obligation imposed on the purchaser, did not impose on the latter any obligation to alter, enlarge deepen or otherwise improve the canal, but simply to keep it in as good repair, and operating condition, as it had been during its ownership by the state. 2. The duty of the purchaser was to repair and restore those portions of the canal which had ceased to perform and fulfil their proper functions, but it was not obliged to create anything which had not previously existed. 3. Penna. Railroad Co. v. Patterson 23, P. F. Smith 491, followed. May 29th 1878. Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ. SHARSWOOD, J., absent. Error to the Court of Common Pleas of Blair county: Of May Term 1878, No. 131. Case by John Manning against the Pennsylvania Canal Company, for the detention of his boat while navigating the canal of defendants. The plaintiff alleged on the trial, that the Act of 16th of May 1857, authorizing the sale of the Main Line to the Pennsylvania Railroad Company, required the purchaser "to keep up the canal from Holidaysburg to Philadelphia in good repair and operating condition;" and also that the Act of 3d May 1864, authorizing the sale of said canal to the defendants, imposed the same condition upon them, and further required them "to keep said canal in good navigable condition during the navigation season." The plaintiff contended that defendants had not so kept up their canal, and that at various points during the season, he was with his boat, mules and hands detained in consequence of the bad condition of the canal. The other material facts are stated in the opinion of this court. The 10th point of the defendants was as follows:— "The obligation imposed upon the defendants by the Act of 1857, did not require them to alter, enlarge, deepen, or otherwise improve the canal, and as the detentions complained of by the plaintiff on the Juniata Canal could not have been prevented without such alteration, enlargement and deepening, the defendants are not responsible.' [Pennsylvania Canal Co. r. Manning.] The answer of the court (Bucher, P. J., of the Twentieth Judicial District), was: "The Act of 1857 clothed upon the defendant the duty of keeping the canal in navigable order; if it was not in navigable order at the time of the purchase it was the duty of the defendant to put it in that condition as soon as it reasonably could, taking into consideration the magnitude of the work and all the circumstances surrounding the particular case; and for further answer we refer to the general charge." This answer constituted the 11th assignment of error. "With reference to the mitre sill, we instruct you that if it was so high that it interfered with navigation, and caused unnecessary detention, the defendants would be liable, even if this defect occurred while the Commonwealth owned the canal." This portion of the charge constituted the 14th assignment of error. The verdict was for the plaintiff for $208.14, and after judgment thereon defendants took this writ, among other assignments of error, being those noted above. D. J. Neff and L. W. Hall, for plaintiffs in error.-The alleged detention at Huntingdon dam was claimed to be caused by the mitre sill of the lock being higher than it should have been. This was as the state constructed it. There was no pretence that it was out of repair. Such difficulties as alleged at this point could not have been obviated, without constructing a new canal, or enlarging, widening and deepening it. That no such obligation was imposed on the defendants was expressly ruled in case of Pennsylvania Railroad Co. v. Patterson, 23 P. F. Smith 491. Aug. S. Landis, for defendant in error.-The defendants were presumed to know, and ought to have known the condition of their own canal, and if there were leaks, obstructions and other defects, they should have been removed and remedied by the defendants, for as Justice WILLIAMS held, the law required them to keep their canal in good repair and operating condition. Is it possible, if a mitre sill becomes so warped or displaced as to impede navigation, that defendants shall not repair it, because it was there when they bought the canal? Mr. Justice MERCUR delivered the opinion of the court, October 7th 1878. The defendant in error owned a canal-boat. With it, he navigated the canals of the plaintiffs in error. He brought this suit to recover damages for detention of his boat. The canals were built, and for several years operated, by the state. 6 NORRIS-16 The Acts of 16th |