did not wend her way to her sister's through a narrow adjacent alley, instead of using the street that had been thrown open to public travel. These questions of negligence and contributory negligence, in connection with the question of plaintiff's damages, were all fairly submitted to the jury, with instructions which were quite as favorable to the defendant as it could reasonably ask. The charge of the learned trial judge is clear, concise, and free from any substantial error. It is unnecessary to consider the specifications of error in detail. There is no merit in either of them. The verdict was clearly warranted by the testimony, and there is nothing in the record that would justify us in disturbing the judgment entered thereon. Judgment affirmed.

MCCOLLUM, J. This is an appeal from the refusal of the court below to set aside a compulsory nonsuit in an action on a policy of insurance. The action was brought to recover compensation for the loss the plaintiff, sustained in the death of his horse in a stable in Philadelphia, from an injury received there; and the nonsuit was entered on the ground that by removing his horse from Jenkintown, where the insurance was effected, to the place where the injury was received and the death occurred, he forfeited his right to the indemnity guarantied by the policy. Two questions are raised by the appeal. They are (1) whether there was a forfeiture, and, (2) if there was, whether there was evidence of a waiver of it by the company.

The first question turns on the construction of section 14 of the by-laws, which is as follows: "The insurance in this company shall be confined to a distance not exceeding twelve miles from the borough of Hatboro." The learned judge of the court below construed this by-law to mean that the property must be kept within the distance limit to entitle the insured to indemnity in case of

loss, and he cited Peterson v. Insurance Co., 95 Am. Dec. 751; Wood, Ins. § 47; London, etc., Ins. Co. v. Lycoming, etc., Ins. Co., 105 Pa. St. 424; and Association v. Evans, 102 Pa. St. 281,-as in accord with and supporting his construction. In all the cases cited, except in Association v. Evans, supra, the location of the property was designated in the policy. In some of them the designation of the location of it was held to be merely descriptive; in others, it was regarded as constituting a continuing warranty that the location of the property should not be changed. This seeming inconsistency in the decisions is due to the fact that the question whether the designation in the policy of the location of the property is descriptive only, or a warranty that it shall not be removed, depends to some extent on the nature and uses of it. In Association v. Evans, as in this case, there was no statement in the policy in respect to the location of the property. In that case the insured lived in the district to which the business of the association was confined. On the 23d of April, 1879, he obtained from the association a policy of insurance on his two horses, then within the charter limit. On the 2d of May, 1880, he took them to Philadelphia, for the purpose of selling them; and, in pursuance of this purpose, he left them there in a livery

and sale stable until the 25th of June, when one of them died. In a suit for the loss, it was contended by the insurer that the policy was forfeited by the action of the insured in removing the horses to Philadelphia, and keeping them there for the purpose above stated; but it was held that, in the absence of any prohibition in the contract, such action did not forfeit it, or prevent a recovery upon it. We think, therefore, that Association v. Evans does not sustain the defendant company's contention in this case. It did not decide that the horses were temporarily in Philadelphia for a purpose necessary or incident to the ordinary use and enjoyment of them, or that the provisions in the charter restricting the business of the association to the counties of Chester, Montgomery, and Berks would have avoided the policy if the insured had moved to Philadelphia, and kept his horses there. It simply determined that, upon the facts appearing in the case, there was no violation or forfeiture of the contract. We have made particular reference to the decision in Association v. Evans, because the by-law limit in this case is of the same nature as the charter limit in that.

We have, then, to decide, as an original question. whether the plaintiff in moving to Philadelphia, and taking his horse with him, violated section 14 of the by-laws, and thereby forfeited his policy. by forfeited his policy. It is by no means clear that he did so. There is, at least, room for doubt whether the by-law was intended to prohibit such removal of the property, or to attach such consequences to it; and, as forfeitures are not favorites of the

ingly found from the evidence that the second writing, claimed to be the last will, with the codicil of latest date, was the last will. In accord with this finding, he vacated the decree probating the first will, revoked the letters issued on it, admitted the second will to probate and registry, and issued letters thereon to Caleb H. Bradley, the executor named in it. From the action of the register vacating the probate of the first will, and revoking the letters testamentary thereon, the executors under that will appealed to the orphans' court. They also applied to the court of common pleas for a writ of mandamus to the register, commanding him to certify to the orphans' court the questions which he had refused to decide, because he had already once certified them to that court. The court granted an alternative writ, to which the register made answer, setting out in substance the facts as we have stated them, and showing further that his refusal to certify the questions raised by those in favor of the first will necessarily entered into and formed part of the decree vacating the probate and revoking the letters, which had been appealed from. The court thereupon made a decree for a peremptory mandamus, from which decree the register prosecutes this appeal.

The right of the court to compel the reg ister to the performance of a ministerial or clerical act necessary to the proper adjudication of a question to be tried in court is undoubted. Nor is it for the subordinate officer or lower court to determine whether an act done or to be done by him is ministe rial or judicial. That is a question for the higher court, wherein it must be judicially determined whether the writ shall or shall not issue. The learned judge of the court below properly decided that the act he commanded was not a judicial act involving the exercise of a discretion in the register; and, if the case turned on this question, the decree would be affirmed without hesitation. But we think the learned judge-inadvertently, perhaps-neglected to inquire whether the exigencies of this case called for the exercise of this extraordinary power. On the facts here, the writ was not one of right on the part of the relators. Their right to have it issued depended wholly on whether it was a necessary step to a proper adjudication of the dispute. If it accomplishes nothing of substance, aids not in the administration of justice, it is not a right. Writs of this nature are not issued to gratify the whims of suitors. It is argued by appellees "that the right here claimed is granted to them by law. Whether it shall be invoked and enforced depends not upon the register, but upon them." But this proposition needs qualification. The right is granted by law only when of value to him who asks it. High on Extraordinary Legal Remedies (page 161)

"In all cases where full and ample remedy may be had either by appeal, writ of error, or otherwise from the judgment, de

cree, or order of the subordinate court, mandamuses will not lie." "It follows, therefore, that those to whom it may be appropriately directed owe some duty to the public, and are under obligation to perform it, and for the enforcement of which there is no other specific legal remedy." Com. v. Commissioners of Allegheny, 37 Pa. St. 277. Gibson, C. J., in Com. v. Mitchell, 2 Pen. & W. 517, says: "It, however, involves an exercise of extraordinary power, which fits it for use only in extraordinary cases, where there would otherwise be a failure of justice." Lord Kenyon, in Rex v. Bristow, 6 Term. R. 168, says: "The best way of preserving this beneficial writ is to be sparing in the use of it." And the authorities are uniformly to the point that, unless there be a grievance which cannot be otherwise adequately remedied, the writ cannot be successfully invoked. On the appeal to the orphans' court necessarily all the evidence taken before the register will be before it, and all the questions raised by the evidence will be passed upon.

The decree of the register was that the de cree of probate of the first will be vacated and annulled, and that the letters granted thereon be revoked, and that the second will is the last will of testator, and that, there fore, it be admitted to probate. From that decree the executors of the first will appealed. It is not questioned that the first will is a will made by the testator. If the second be his will, then the first is not his last will, because the second, being of later date, revokes it. Whether the second is his will depends on whether it was executed by him, whether it was procured by undue influence, and whether he possessed testamentary capacity. If, for either reason, the will was not his last will and testament, the appeal will be sustained, and the decree of the register admitting it to probate will be wholly set aside. There being no other will, then, than the first, and that not being questioned on any ground except that it was revoked by the second, it will stand of record, already proven as his last will, for there will be no decree to the contrary. As every question necessarily comes before the orphans' court on the appeal, the appellees have a complete and adequate remedy to which this mandamus cannot in the least contribute. Therefore the decree of the court below, for that reason, and that alone, is reversed, at costs of appellees.

In re SWANSON ST.
Appeal of MORRIS et al.

(Supreme Court of Pennsylvania. Oct. 1, 1894.)
VACATION OF PART OF STREET - JURISDICTION OF
COURT-PETITION-SUFFICIENCY - QUESTION OF
QUALIFICATION OF PETITIONERS-REVIEW.

1. Act May 8, 1854 (P. L. 645), provides for the vacation of any alley or highway when it has become useless to the public. Held, that

the court has jurisdiction to order the vacation of a part of a street where such part becomes useless to the public.

2. On appeal in proceedings to vacate a street, in which the petition asserts that the petitioners are "freeholders of the vicinity." the supreme court cannot consider the question of such qualification in the absence of a specific exception to petitioners' qualifications in the trial court.

3. Since the supreme court cannot try the merits of a case relating to the vacation of a street, it cannot consider the question of the qualification of petitioners for such vacation as to being freeholders of the vicinity.

4. A petition to vacate a street is sufficient if it states that the street is a public road or highway, without showing by what authority it had been opened.

Appeal from court of quarter sessions, Philadelphia county.

Petition by Samuel W. Neall and others for the vacation of part of Swanson street, in the city of Philadelphia. From a decree for petitioners, Elliston P. Morris and others appeal. Affirmed.

The assignments of error are as follows: "(1) The learned court erred in ordering the vacation of Swanson street between Washington avenue and Prime street. (2) The learned court erred in not refusing to order, as prayed for in the petition, to vacate Swanson street between Washington avenue and Prime street. (3) The learned court erred in not refusing to entertain and consider the petition to vacate vacate Swanson street between Washington avenue and Prime street because of a lack of jurisdiction. The court below had no jurisdiction to order a vacation of a part of an opened street. (4) The court below had no jurisdiction to entertain a petition filed by persons who were confessedly not freeholders of the vicinity. (5) The petition for the vacation was defective, in that it failed to show by what authority Swanson street had been opened. (6) The court had no right to entertain jurisdiction of the petition, in view of the fact that the reason assigned, namely, danger in the use of the street because of its use by a railroad company, was insufficient."

George E. Fili, James Alcorn, and Chas. F. Warwick, for appellant city of Philadelphia. John G. Johnson, for other appellants. H. K. Fox and David W. Sellers, for appellees.

GREEN, J. The proceedings in this case were instituted under the act of May 8, 1854 (P. L. 645), for the purpose of vacating a part of Swanson street, Philadelphia, lying between Washington avenue and Prime street. The petition purports to be signed by the requisite number of freeholders in the vicinity, and the causes set forth as reasons for the order of vacation were sufficient in law for that purpose, if established. The act of 1854 gives power to the court of quarter sessions to entertain, hear, and determine the matters in question, and authorizes the court, if they so desire, to refer the ascertainment of the facts to six road viewers, to report for the in

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formation and final judgment of the court. Such viewers were appointed in this case, and reported that they had met the parties and their counsel at various times, and had taken a large amount of testimony, which they returned with their report; but that they were unable to agree as to the question of vacation, three of their number being in favor of it, and three against it. The learned court below, being of opinion that Swanson street from Washington avenue to Prime street has become useless to the public and those having land bounding thereon, decreed that the part of the street named be vacated and closed. It is contended for the appellants that the court had no jurisdiction to order the vacation of part of a street, and the language of the act is cited in support of the contention, thus: "Whenever any private or public lane, alley, road or highway shall, by reason of forming town plots or otherwise, become useless to the public," etc. * And upon hearing all parties interested, it shall be lawful for the court to decree the vacation of any such lane, alley, street or highway upon such hearing," etc. Upon this language it is contended that the decree of vacation must be of the whole street, and cannot be upon a part of it. The argument is that in the general legis lation of the commonwealth authorizing the vacation of streets and roads the power is expressly given to vacate "the whole or any part of any private or public road." It is true that in the general road law of 1836, by the eighteenth section (Purd. Dig. 1501), this is the phraseology, and in the act of May 3, 1855 (Purd. Dig. 1501), the same language is used in giving power to the courts of quarter sessions "to change or vacate the whole or any part of any public or private road which may have been laid out by authority of law and opened in part." But it does not follow from this that a power to vacate part of a road cannot be deduced from legislation which gives power to vacate the whole of it. In all ordinary circumstances the power to do a greater act includes the power to do the lesser act, which is a part of the greater. In the interpretation of the doctrine of powers this is well understood. It is not easy to see why it is not true of the power to vacate roads. If a court is empowered to vacate the whole of a road, why may it not vacate a part of it? The statutory condition upon which the power is conferred is the same in both cases, to wit, "whenever the same shall become useless to the public and those having lands bounding thereon." This condition may become true of a part as well as of the whole of a long public road, or a long street of a city. When it occurs in a city, the vacation of the useless portion may be accomplished with little or no inconvenience to the property owners on the remaining portion of the principal street, because there are always crossing streets at short distances apart, through which free communication can be had with all the streets. The direct question at issue

here does not seem to have been before us heretofore. The Road Case, 2 Pen. & W. 532, cited for the appellants, does not raise the question. There the proceeding was to vacate part of a road which had never been opened, and to lay out another in its stead. We held it could not be done under the act of 1815, which gave a power of vacation, but no power to lay out a new one in place of the old one; nor under the act of 1809, because it only gave a power to vacate old roads which had been completely opened. The case of Road in Greenwich, 11 Pa. St. 186, is not in point, because the conditions did not exist that are required by the nineteenth section of the act of 1836, under which the proceeding was instituted; but in Madison v. Schoolhouse Road, 37 Pa. St. 417, where those conditions did exist, we held that a part only of the unopened road could be vacated, although the nineteenth section does not authorize expressly the vacation of the "whole or any part" of the road. Thus in this case, as in the next one following, the power to vacate a part where the power to vacate the whole existed was assumed without discussion. In the case of Vacation of Henry St., 123 Pa. St. 346, 16 Atl. 785, a portion of the street had been abandoned and built up, so that a part of it only was left, extending from Taggert street to Brighton road, a distance of about 150 feet. The proceeding was under the same act of 1854 which is invoked in the present case, and several of the questions discussed in this case were considered and decided there. The part vacated by the decree of the court below was the part between Taggert street and Brighton road. It was claimed for the appellants that the quarter sessions had no jurisdiction, but the court below and this court held that it did have jurisdiction under this act of 1854. It was also contended, as is contended here, that there was no concurrent action of the city, but we held that the city's jurisdiction was only under the act of 1854, and there was no evidence that the city had accepted the provisions of that act, and that it would be time enough to consider the question arising under that act when it was properly presented. On the question of jurisdiction, and also of the applicability of the general road law of 1836 and certain other enumerated acts, our Brother Clark, delivering the opinion, said: "It is plain that none of these statutes has any application whatever to the case in hand, for the authority in none of them extends to the vacation of a street or highway in any incorporated city. This is a proceeding, however, under the act of May 8, 1854 (P. L. 645), which provides that the ourt of quarter sessions of the proper county shall have authority to vacate any private or ublic highway, whether laid out by the pubic or private owners, whenever, by reason of orming town plots or otherwise, they shall ecome useless to the public and to those aving lands bounding thereon. The method v.30A.no.5-14

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of procedure is specifically defined, and is, in most respects, different from the methods pursued under the act of 1836. It is contended that this act of 1854 should be construed in pari materia with the acts of 1836 and 1855, and that the restrictions contained in those acts should be held to apply to it as part of the general system. But that the act of 1854 was intended to apply to incorporated cities is manifest; not only is the act general in form, embracing all cities within its terms, but it expressly provides that in any city' the rule to show cause shall be published in one or more newspapers twice a week, and in the other parts of the state once a week, etc. It is plain, we think, that the restrictions imposed by the acts of 1836 and 1855 in this respect were not intended to apply in proceedings under the act of 1854. It is equally plain, also, from the specific and peculiar methods of procedure defined and established by the act of 1854, that the proceedings are wholly independent of, and are, therefore, not to be regulated by the practice under the acts of 1836 or 1855. Whenever, therefore, a case is presented covering the conditions specified in this act, whether in an incorporated city or elsewhere, the court of quarter sessions of the proper county must take cognizance of it." The foregoing citation is sufficient to dispose of the question of jurisdiction and the character of the proceedings in the present case.

We do not see how we can consider the fourth specification of error. The question of the qualification of the petitioners should have been raised on the record in the court below by a specific exception to that effect. The first exception filed is the only one that even approaches the subject, but it does not challenge the status of the petitioners as "freeholders of the vicinity." The petition asserts that they do fulfill that requirement, and the only way the matter is brought before us is by an assignment of error to a question which was not ruled by the court below, and was not before it, so far as we can discover. Moreover, we could not consider the question without trying the case on its merits, which we cannot do. In re Church Street, 54 Pa. St. 353; In re Kensington & Oxford Turnpike Co., 97 Pa. St. 269. The admissions of counsel are no part of the record, and we cannot consider them.

The fifth assignment is disposed of by what we said in Vacation of Henry Street, supra, in reply to a similar objection. We held that it was enough that the petition set out that the street was a public road or highway. In this case the petition alleges that the street "is opened and used as a public street." We also ruled that this was sufficient in Re Beatty's Plan, 104 Pa. St. 622.

The sixth assignment is without merit. The city, having withdrawn the only exceptions filed by her, does not seem to have any standing to be heard. Decree affirmed, and appeal dismissed, at the cost of the appellants.