ond amendment to the statement is not improper, where it merely amplifies the first, is not no departure from the original cause of action, inconsistent with the original statement, makes and adds nothing under which damages could be increased. directly in the chain of title of each of the parties, and on the face of the plan is a declaration that the lots were laid out by Bayard on October 1, 1836. The defendant company is therefore estopped from denying to the plaintiff any rights which she acquir- [Ed. Note.-For other cases, see Pleading, ed through her predecessor in title who pur-Cent. Dig. §§ 686, 687, 689–706, 709; Dec. Dig. § 248.*] chased one of the lots in this plan. [5, 6] There is no evidence that Allegheny street was a public thoroughfare or dedicated to public use prior to the dedication by Bayard. It was a public highway in the sense that it was dedicated by Bayard and was used by the public, notwithstanding it was not accepted by the municipality. The reference to it therefore in the deeds as a public highway was proper, and is no evidence that it was such prior to the dedication by Bayard. The plan of lots having disclosed the dedication of the streets and alleys in 1836, the burden was upon the defendant to show that the street known as Allegheny street had existed prior to the Bayard dedication. This did not appear by the pleadings or the evidence. In fact, there was not a particle of evidence tending to show any such prior dedication. is immaterial that the street was not laid out 40 feet in width by Bayard, and that the other half of the street was dedicated by another to public use. The plaintiff and other purchasers of lots in the Bayard plan had the right to insist that the 20 feet of the street, shown on the plan, should be kept open for public use. It 2. PLEADING (§ 248*) AMENDMENT-STATE MENT NEW CAUSE OF ACTION. Amendments should be liberally allowed; the test of their propriety being whether they introduce a new cause of action. Cent. Dig. §§ 686, 687, 689-706, 709; Dec. Dig. [Ed. Note.-For other cases, see Pleading, § 248.*] 3. CARRIERS (§ 202*)-CARRIAGE OF GOODSOVERCHARGE-ACTION FOR DAMAGES. In an action against a railroad for overcharge of freight rates on potatoes, where the official tariff of rates stated that when it was "practicable" for the potatoes to be weighed they should be charged for at the actual weight, but when it was not "practical" to weigh them estimated weights should govern, and the evidence shows that the railroad had ample facilities at various points to weigh the potatoes either by hand scales or track scales, a verdict and judgment for plaintiff will be sustained. Cent. Dig. §§ 906-915; Dec. Dig. § 202.*] [Ed. Note. For other cases, see Carriers, 4. WORDS AND PHRASES "PRACTICAL." "PRACTICABLE” "Practicable" and "practical" are defined as that that may be practiced or performed; capable of being put into practice; done or accomplished; feasible. and Phrases, vol. 6, pp. 5483, 5484.] EVIDENCE-RECORD CARDS. In an action against a railroad for overcharge of freight rates, it was error to permit testimony as to the contents of record cards indicating that some cars had been actually weighed; the cards themselves being the best evidence. 6. APPEAL AND ERROR (§ 1051*)-REVIEW— HARMLESS ERROR-ADMISSION OF EVIDENCE. [7] The act of June 16, 1836 (P. L. 749), providing that streets, lanes, and alleys within the city of Pittsburgh, laid out by private persons shall be deemed public highways, has no application to this case. When the lots were laid out, the plan was made, [Ed. Note.-For other cases, see Evidence, and the plaintiff's lot was sold to her pred-Cent. Dig. $$ 472, 473, 4742-504, 506–526; Dec. Dig. § 158.*] ecessor in title by Bayard, the real estate was in Peebles township, Allegheny county, and not within the territorial limits of Pittsburgh. Subsequently it became a part of Lawrenceville, which later became a part of the city of Pittsburgh. Therefore at the time these lots were laid out and the plan was made Peebles township was not a part of the city, and the streets and alleys of the plan did not, by virtue of the act of 1836, become public highways. Under these circumstances, a city ordinance depriving a lot owner of his easement over the streets in the plan a property right secured by contract-without compensation would offend both the federal and state Constitutions, and be void. The decree is affirmed. In an action for overcharge of freight rates, where there is other ample testimony to sustain a finding that it would have been practicable to have weighed the potatoes shipped, the error in admitting testimony as to the contents of record cards showing that some cars had been actually weighed was harmless. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*] 7. APPEAL AND ERROR (§ 237*)-PRESENTING QUESTIONS IN TRIAL COURT-RECEPTION OF EVIDENCE. Where, after the refusal to withdraw a juror and continue the cause because of an improper statement by a witness, counsel rests upon his exception to the refusal without requesting the court to warn the jury to disregard the statement, the Supreme Court will assume that all the parties felt that no material harm was done and will not reverse the judgment for failure to strike the answer from the record. JOYNES v. PENNSYLVANIA R. CO. [Ed. Note. For other cases, see Appeal and (Supreme Court of Pennsylvania. Jan. 2, 1912.) | Error, Cent. Dig. § 13021⁄2; Dec. Dig. § 237.*] 1. PLEADING (§ 248*) — AMENDMENT-STATE- 8. APPEAL AND ERROR (§ 1066*)—REVIEW— MENT-NEW CAUSE OF ACTION. HARMLESS ERROR-INSTRUCTIONS. (234 Pa. 321) In an action against a railroad for overcharge of freight rates, the allowance of a sec It is harmless error for the trial judge to refer to the "weight" and "preponderance" of the evidence where defendant introduced no testimony. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] Appeal from Court of Common Pleas, Allegheny County. Trespass by W. W. Joynes against the Pennsylvania Railroad Company to recover damages for overcharge in freight rates. From a judgment for plaintiff, defendant appeals. Affirmed. At the trial it appeared that plaintiff is a produce merchant at Pittsburgh. His principal business is the buying and selling of potatoes. During the years 1900 to 1905, inclusive, he purchased on the eastern shore of Maryland some 800 cars of Irish and sweet potatoes, all of which were consigned to him at the Pennsylvania Lines produce yards at Pittsburgh. The shipments were from 32 stations on the New York, Philadelphia & Norfolk Railroad Company, coming into Pittsburgh over the lines of the defendant. The defendant had in force a tariff duly filed with the Interstate Commerce Commission fixing the rates on potatoes, applicable to territory including the eastern shore, in part as follows: "The following estimated weights will apply in cars where actual scale * ascertained: weights cannot be Potatoes, white or sweet (in barrels) when it is practicable for agents to weigh same, will be charged at actual weight; but when it is not practical to weigh same, the following estimated weights will govern: Sweet potatoes, when shipped in common or truck barrels, per bbl., 170 pounds. White potatoes, when shipped in common or truck barrels, per bbl., 180 pounds." The contracts of carriage or bills of lading provided: "Owners or consignees shall pay freight according to weights ascertained by any carrier hereunder. * * * The defendant collected freight for the plaintiff's potatoes on the basis of the estimated weights fixed by the above tariff. In February, 1906, the plaintiff brought suit to recover the difference between the freight paid, based on estimated weights, and that which he claimed should have been collected based on the actual weights, alleging that it had been practicable to weigh the shipments, and that he had continued to pay because he was kept in ignorance, by fraud and misrepresentation, of the fact that the freight was charged on estimated weights. Subsequently he twice amended his statement, and averred his bills of lading and that he was coerced into paying the freight. It was specially admitted in the court below by counsel for the defendant that "the charges were made on estimated weights and not on actual weights," and that, if the plaintiff was entitled to recover under the evidence, the amount claimed by his counsel at trial was correct and would not be questioned. The court charged the jury, inter alia: "(a) The important question for you to determine is whether or not it was practicable to weigh these potatoes, shipped from the points named down on the eastern shore, * to the plaintiff here in Pittsburgh. It is claimed by the plaintiff that it was entirely practicable to weigh those potatoes. The defendant maintained it was not practicable. (b) The plaintiff claims to have shown you that at a great many of those stations there were scales that could have been used, that it was practicable to use. those scales at the points of shipment in order to ascertain the actual weight of the potatoes, and that the company should have done so and should have charged, as provided by the Interstate Commerce Commission, for the actual weight instead of what was shown to be the estimated weight. They claim that if it was not practicable to weigh the potatoes at all of the stations, yet they passed through a number where it was entirely practicable to do so, and that it was the duty of the defendant company and especially incumbent upon them, if they could not have them weighed at the other points, to weigh them here in Pittsburgh, where the freight was payable by the plaintiff, and where it is claimed they have the facilities for weighing the potatoes. It was claimed they could readily have done this, and thus have determined the amount of freight to be paid by the plaintiff according to the actual weight of those potatoes. Now that is the question. Could they have done that at any of these points? Was it practicable for them to weigh these potatoes? Has the testimony on behalf of the plaintiff satisfied you by its weight that it was practicable? If so, the plaintiff is entitled to recover. (c) Now that is the question. Could they have done that at any of these points? Was it practicable for them to weigh these potatoes? Has the testimony on behalf of the plaintiff satisfied you by its weight that it was practicable? If so, the plaintiff was entitled to recover. If he has failed in that respect, the burden being upon him, your verdict must be for the defendant. The defense claim he has failed, and has thought it unnecessary to offer any evidence, claiming the plaintiff has not made out his case. In other words, the plaintiff has not shown you by the preponderance of evidence that it was practicable to weigh these potatoes. That is the question for you to determine, and if you determine that in favor of the plaintiff, you allow him the amount of his claim, and if he has not done so, your verdict must be for the defendant company." The verdict was for the plaintiff in the sum of $4,967.69; the defendant's motion for judgment non obstante veredicto was refused, and judgment entered on the verdict. The defendant appealed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Argued before FELL, C. J., and BROWN, | capable of weighing car loads of potatoes, MESTREZAT, POTTER, ELKIN, STEW- where such work was actually done; and ART, and MOSCHZISKER, JJ. that Pittsburgh, the terminal point, had track scales in the produce yard upon which James R. Miller, for appellant. Stephen the actual weight could have been taken. Stone, for appellee. It appears that when potatoes are weighed in the cars, the actual weight per barrel MOSCHZISKER, J. [1, 2] The first is ascertained by dividing the total weight amendment to the statement of claim was less the weight of the car by the number of allowed without objection or exception on barrels. This being so, it seems reasonable the part of the defendant, and while the to assume that they could get the actual second was objected to upon the ground call-weight to almost as great a degree of cered to our attention by the first assignment of error, it merely amplified the other amendment and was not inconsistent with the original statement; although new matter was averred, the plaintiff made no real departure from the original cause of action, namely, the overcharge in freight rates, and he added nothing under which the damages could be increased. "Amendments should be liberally allowed, and the test of their propriety is whether they introduce a new cause of action." Knapp v. Hartung, 73 Pa. 290, 294; Vervaeke v. Adams Express Co., 230 Pa. 647, 79 Atl. 764. The testimony objected to was relevant to the issues raised by the pleadings, and we see no error in its admission. [3, 4] The freight charges were collected by the appellant company under contracts of carriage which provided that the consignee should pay the freight according to the weights ascertained by any carriers thereunder. The official tariff stipulated that when it was "practicable" for agents to weigh potatoes they should be charged for at actual weight, but when it was not "practical to weigh the same," then estimated weights according to the schedule were to govern; and that "estimated weights will apply in cases where actual scale weights cannot be ascertained." The significant words used are thus defined in Webster's New International Dictionary: "Practicable, that that may be practiced or performed; capable of being put into practice, done or accomplished; feasible. Practical, syn.see practicable." The bill of lading and the printed tariff taken together indicate that these words were used in their ordinary sense; they did not require any particular or elaborate construction on the part of the trial judge. He left it to the jury to say under the evidence whether the company could have accomplished the taking of the actual weight of the potatoes-whether it was feasible for them to have ascertained their actual weight. The uncontradicted evidence showed that there were hand scales at the various stations of original shipment which had a capacity of 500 pounds, and that barrels of potatoes were at times actually weighed upon such scales; that at several points between those stations and tainty by weighing a number of barrels on hand scales at the original point of shipment and accepting the average. However this may be, we are not convinced that, under the documentary evidence, the court was wrong in submitting all of the opportunities for weighing the potatoes to the jury, for, had the defendant company desired, it could have written into its schedule and contract the stipulation that unless track scales existed at the original point of shipment potatoes should be charged for according to estimated and not actual weights. [5-8] The trial judge was wrong in permitting the testimony concerning the contents of the record cards which indicated that some of the cars in question had been actually weighed at a station en route called Delmar. The cards themselves were the best evidence, and if the plaintiff desired to rely upon them to any extent he should have given notice to produce. But since there was ample other uncontradicted testimony to sustain a finding that it would have been practicable to weigh the potatoes, we feel that the mistake can be treated as harmless error, and for that reason the plaintiff should not be forced to a new trial. Nor, under all the circumstances, are we inclined to reverse because of the incident called to our attention in the fourteenth assignment. While the trial judge should at least have stricken the objectionable answer from the record and warned the jury to disregard it, yet since counsel for the appellant rested upon his exception to the refusal to withdraw a juror and continue the cause, and made no request of the court to warn the jury to disregard the answer, we think it is probable that all parties felt that no material harm had been done. The defendant introduced no testimony; therefore it was unnecessary for the trial judge to refer to the "weight" and "preponderance" of the evidence, but no possible harm could have been done thereby. There was ample evidence to show that it was practicable to ascertain the actual weights, and that the freight payments were not voluntary. After considering in detail each of the matters called to our attention, we are not convinced of reversible error. The assignments are all overruled, and GRAY, Atty. Gen., ex rel. CAPELLE et al. v. MAYOR AND COUNCIL OF WILMINGTON et al. (Court of Chancery of Delaware. ly used to supply water, and because the Board of Water Commissioners had never taken any action to show the land was not necessary, or relinquishing control or auMay 31, thority over the land. 1912.) INJUNCTION (§ 11*)—MUNICIPAL PROCEEDINGS-RIGHT TO WRIT. The Court of Chancery will not restrain the mayor and council of a city from taking further action on a proposed ordinance providing for a sale of land owned by the city, though a recital in the ordinance of the relinquishment of control over the land by the board of water commissioners, which was a jurisdictional fact, be untrue; injunction being properly withheld until the last practicable moment, when it appears that the mayor and council will take final and illegal action. [Ed. Note.-For other cases, see Injunction, Cent. Dig. 88 9-11; Dec. Dig. § 11.*] Action by Andrew C. Gray, Attorney General, on relation of George S. Capelle and another, against the Mayor and Council of Wilmington and others. Restraining order dissolved, and preliminary injunction denied. Suit by the Attorney General at and by the relation of George S. Capelle and Samuel Bancroft, Junior, to restrain the Mayor and Council of Wilmington from taking any further action on a proposed ordinance providing for the sale of a piece of real estate owned by the City of Wilmington, containing what is known as the Rodney Street Reservoir. Hearing had on rule to show cause why a preliminary injunction should not be issued. Robert H. Richards, for complainants. John W. Brady and Armon D. Chaytor, Jr., for defendants. Injunction bill. The bill is by the Attorney General upon the relation of two citizens and taxpayers of the City of Wilmington, alleging that the City owns land bounded by Rodney, Eighth, Clayton and Ninth Streets, containing a reservoir for water, and so, a part of the water works of the City, full jurisdiction over and control of which was and is vested in the Board of Water Commissioners. There had been introduced into the Council an ordinance, which had had two readings, and which recited in the preamble that the land had been abandoned as a reservoir and was not necessary to the water supply system, and that "the Board of Water Commissioners of the City of Wilmington had expressed to the Council of the Mayor and Council of Wilmington its opinion that it [the land] is of no further use for that purpose to the City of Wilmington." The ordinance then authorized and directed the sale of the land at public sale. The relators alleged that the sale of the land would be unlawful and injurious, and that it was the purpose and intention of the Council to take further action on the ordinance at its next meeting, and probably to adopt the same, and upon the adoption of sale could easily be made of the land. the same and the approval thereof, a speedy Irreparable injury to them and other taxables, if further action on the ordinance be permitted and the sale be effected, was also alleged. Prayers were made to enjoin the members from taking any further action upon, or vot of the Council, naming them individually, ing on the ordinance, and further prayers to restrain the approval by the Mayor, and the making by the corporation of a sale under the ordinance. A restraining order was granted on the day when the next meeting of the Council would be held after the ordinance was introduced, and a rule for a preliminary injunction was awarded. Ex parte affidavits were read at the hearing of the rule. THE CHANCELLOR: Two main questions arose at the hearing: (1) Had the Board of Water Commissioners relinquished its control and authority over the land and determined that it was no longer necessary for the water supply system of the City? (2) If such control and authority had not been relinquished, could or should the Court of Chancery enjoin the Council from passing the ordinance authorizing a sale of the land? It should be explained that the Council was formerly the legislative, as well as the executive, branch of the municipality, but that since 1883 the full jurisdiction, control, and management of the water supply system, and of all the land used for reservoirs and other property for storing and delivering water, was absolutely vested in the Board of Water Commissioners, so that until this Board relinquished control of the land the Council had no power to sell it. There was, and could have been, no contention to the contrary. From the affidavits it is clear, beyond question, that at no time had the Board of Water Commissioners relinquished control, or taken any action to that effect, and that there was no basis for any claim that they had taken any official action which justified the conclusion that they considered the land It was further alleged in the bill that the unnecessary, or wanted it sold. It is not recitals were untrue in fact, because the true that the Board had expressed to Counland was necessary for the water supply cil the opinion that the land was of no fursystem, and, in fact, contained pipes actual- ther use to the City, and the statement in •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 83 A.-21 case as that presented, the preventative powers of the Court of Chancery should not be exercised to enjoin the passage of the ordinance. the recital that this opinion had been expressed was untrue. It is of no consequence, except, perhaps, as to the question of the imposition of costs, but there is no evidence to show that, before the ordinance was in- In the case of Stevens v. St. Mary's Traintroduced, any effort was made to obtain ing School, 144 Ill. 336, 32 N. E. 965, 18 L. from the Board of Water Commissioners R. A. 832, 36 Am. St. Rep. 438, there is a their official views as to the need for the land and the desirability of selling it. But though the recitals in the ordinance were untrue, and therefore Council had no legal power to sell the land, still, the question remains, should the Court enjoin the Council from taking further action on the ordinance? There is no contention but that the Council had power to authorize the sale of the property, if the control of the Water Department had been in fact relinquished, and this is rather assumed than decided in this case. It was not a case, then, where the Council was seeking to do an act ultra vires: e. g., to create a public nuisance, or remove an official over whom it had no control. The deficiency of authority arose from the fact that some other municipal body had not relinquished its superior right of control of the thing over which the Council was seeking to exercise power and which it was seeking to sell pursuant to its general powers. Neither was it contended that the bill was not brought by the proper parties, and in the proper way, and it is assumed that the Attorney General, at the request of the relators as taxpayers of Wilmington, had a right as such to proceed in the manner in which they did. The same course was pursued in the case of Attorney General v. Wilmington, 4 Del. Ch. 575, which proceeding was effective, though the Court did no more than grant a preliminary order without rendering an opinion. Again it is clear that the passage of the ordinance would not, of itself, have effected any definite result without further steps being taken to enforce it, or make it effective. Title to the property would not have been changed by the passage of the ordinance, and no rights, or authority, would have been conferred thereby. It would not Have imposed upon any other municipal agents the duty to sell the land, but was an attempt to decide in favor of a sale thereof at some future time at public auction. It is true, also, that in attempting to so deal with the property the Council was acting, not in its public, but in its proprietary, character, much like the board of directors of any other corporation dealing with corporate property, rather than as a branch of the State government exercising governmental powers for the protection of the life or property of its citizens. While there is some conflict in the decisions, not so much as to the principles of law applicable, but rather to the applica full discussion of the authorities on the subject of judicial power to restrain the exercise of legislative powers, and the conclusion was thus stated there: "The weight of authority and the tendency of the more recent decisions are in favor of the position, that the restraining power of the courts should be directed against the enforcement, rather than the passage of authorized orders and resolutions or ordinances by municipal corporations." Without reviewing the authorities, this is considered by this Court to be a safe statement of the law on the subject. There are exceptions to this rule, and the case of Roberts v. City of Louisville, 92 Ky. 95, 17 S. W. 216, 13 L. R. A. 844, seems to be one. There the Court restrained the adoption by the legislative branch of the City government of an ordinance requiring the Mayor to convey certain lands of the City for an unlawful purpose. This was a case where the mere acting on, or the passage of, the ordinance might create rights and cause an injury to the City. In the case cited, the Court noted the dual character of a municipal corporation and held that a court of equity might enjoin the passage of an ordinance affecting the corporation in its private or proprietary character and not those affecting the corporation in its governmental or public capacity. But this distinction has not, it seems, been adopted and does not seem to be sound. Instead of interfering with a legislative movement to the accomplishment of an illegal purpose, at the outset thereof, the court should rather act at the last practicable moment, giving ample time for appeals to be made to the reason and good judgment of the legislators. Here, there was a fact to be determined by the Council before it could exercise any control over the land in question, viz.: Had the Water Department relinquished control? The Court cannot assume in advance that the members of the Council will ignore the real facts and violate the obligations which they have assumed as legislators by voting to pass the ordinance in the face of the clear evidence against such relinquishment, such as has been presented to the Court in this case, and which perhaps might have been presented to the Council. It will be time enough to stretch forth the preventative arm of this Court when some attempt is made to enforce such an ordinance in case it be passed by the Council and approved by the Mayor. There are proceedings to be taken, even aft |