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end nearest the crossing, who warned persons , circumstances creating a duty on the part of about to use the crossing when it was proposed defendant, to the plaintiff, to keep the machine to start the car, but at this particular time in repair, and consequently no obligation to rethere was no man at that place, and no warning munerate the latter for his injury. The magiven, and that the car was suddenly set in mo- chine was not intrinsically dangerous. The tion when the plaintiff was on the crossing, plaintiff was a mere licensee. The negligence, whereby he was struck, knocked down, dragged if any, was passive, and not active—of omission, about 20 feet, and had one foot so injured that and not of commission." A judgment in favor it had to be amputated and the other less in- of the plaintiff in the court below was therejured but sufficiently to cause the amputation of fore reversed, though not without dissent. one or more toes to be necessary.
In Schiffer v. Sauer Co., 238 Pa. 550, 86 The defense was twofold. First, on the fact Atl. 479, the plaintiff who was a carpenter seekthat the plaintiff was guilty of contributory neg- ing employment, entered into a building in the ligence in attempting to cross the track without course of erection while the defendants, one a the precautions required by law at a place, not contractor doing plumbing work, and the other the crossing, in front of a moving car; and, a gas company, were jointly engaged in testing secondly, that the defendant owed the plaintiff and inspecting the gas pipes, and was injured no duty whatever because there was no relation by an explosion resulting from the omission to of master and servant, claiming the plaintiff to plug or cap two openings in the gas main. be only a licensee of the premises who was Judgment was entered by the court in favor of seeking work, but had not yet entered into the the defendant, because the plaintiff was a mere employment of the defendant. It is in conse- licensee to whom the defendant owed no duty, quence of this latter theory that the motion for except to abstain from inflicting on him an injudgment non obstante veredicto is now pre- tentional, wanton, or willful injury, and the sented, and the defendant relies upon the princi- court quoted at length from the foregoing opinple followed in Larmore v. Crownpoint Iron Co., ion. 101 N. Y. 391, 4 N. E. 752, 54 Am. St. Rep. It would seem as if there were a plain distinc718, and Shiffer v. Sauer Co., 238 Pa. 550, 56 tion to be found between the facts of those cases Atl. 479. In the former case, the plaintiff, and the one now before us, a distinction indiseeking employment, went upon the grounds of cated in the Larmore Case when the court rethe defendant and while walking along a path- fers to the running of a locomotive without way was struck by a piece from a machine that warning over a path across the railroad which had suddenly broken. In the opinion the court had been generally used by the public. . The stated: “The plaintiff was on the premises at path in this colliery was opened by the railroad most by the mere implied sufferance or license company to accommodate the needs of its emof the defendant, and not on its invitation, ex- ployés, as well as persons with horses and wag. press or implied ; nor was he there, in any ons who had business within the limits of the proper sense, on the business of the company. colliery grounds, and persons who in the course
* He went there on his own business, of defendant's business might become its emand in returning he was subserving his own pur- ployés and were therefore received by its forepose only. The precise question is whether a man at a place within the grounds which was person who goes upon the land of another with- reached only by passing over the crossing. out invitation, to secure employment from the Surely an employer of labor who operates a owner of the land, is entitled to indemnity from railroad such as this one must operate it withsuch owner for an injury happening from the out negligence toward those who come upon his operation of a defective machine on the prem- ground seeking employment at a place appointises, not obviously dangerous, which he passes ed by him for the purpose, who, coming as in the course of his journey, if he can show much about his business as about their own, that the owner might have ascertained the de- are by him directed over a railroad crossing as fect by the exercise of reasonable care."
the only way of reaching the office or official The court answers the question by saying: that must be visited if employment is to be ob"We know of no case which goes to this extent. tained. When such a railroad is operated negThere is no negligence, in a legal sense, which ligently, it comes within the instance suggested can give a right of action, unless there is a vio- in the Larmore Case, supra, where the neglilation of a legal duty to exercise care. The gence is active and not passive, where it is an duty may exist as to some persons, and not as act of commission and not of omission, or, still to others, depending upon peculiar relations speaking in the language of that case, we have and circumstances. An employer is required to
an instance where "the duty of keeping the take reasonable precautions and to exercise rea- premises in safe condition even as against a sonable care in providing safe machinery and mere licensee may also arise where affirmative appliances for the use of his servant. The duty negligence in the management of the property or arises out of the relation.
business of the owner would be likely to subof land, in general, may use it as he pleases, ject persons exercising the privilege theretofore and leave it in such condition as he pleases. permitted or enjoyed, to great danger." So, also, where the owner of land, in
Much stress was laid at the argument on the the prosecution of his own purpose or business, fact that the defendant had inclosed the propor of a purpose or business in which there is a erty with a high fence. But this overlooks the common interest, invites another, either express- other potent fact that the defendant had left ly or impliedly, to come upon his premises, he gates in the fence and established roads from cannot with impunity expose him to unreason those gates across a railroad operated within able or concealed dangers ; as, for example, the inclosure. Whether the special conditions from an open trap in a passageway. The duty existing at this place required the establishin this case is founded upon the plainest prin- ment of signals or brakemen to give notice beciples of justice.
The duty of keeping fore moving the cars was, in our opinion, clearly premises in a safe condition, even as against a a question of fact for the jury, and as such it mere licensee, may also arise where affirmative was submitted both in the body of the charge negligence in the management of the property and in the answer to a particular request by or business of the owner would be likely to sub- the defendant for instructions. On the whole ject persons exercising the privilege, theretofore case we deny the motion. permitted and enjoyed, to great danger. The case of running a locomotive, without warning,
Verdict for plaintiff for $3,300, and judgover a path across the railroad, which had been ment thereon. generally used by the public without obiection.
Argued before . BROWN, MESTREZAT, furnishes an example. "Barry v. N. Y. Central Railroad, 92 N. Ì. 289 [44 Am. Rep. 377].
POTTER, STEWART and MOSCHZISKIn the case before us re were no | ER, JJ.
John McGahren, of Wilkes-Barre, Warren, John Byrd. From decree for plaintiffs, des Knapp, O'Malley & Hill, of Scranton, and fendant appeals. Reversed. Eugene A. Brennan, of Wilkes-Barre, for ap See, also, 91 Atl. 848, 850. pellant. James L. Lenahan and John S. Argued before FELL, C. J., and MESTRELopatto, both of Wilkes-Barre, for appellee. ZAT, POTTER, ELKIN, and STEWART, JJ. PER CURIAM. .
Ira J. Williams and Joseph P. Gaffney, Under the facts in this
both of Philadelphia, for appellant. Joseph case, which appear in the opinion of the court denying the motion of the defendant R. Embery, of Philadelphia, for appellees. . for judgment non obstante veredicto, the negligence of the defendant and the con
ELKIN, J.  This is the kind of a case tributory negligence of the plaintiff were in which the interested parties are in much questions for the jury, and, as we have not better position to settle their own differences, been persuaded that any reversible error was if they approached the subject in a proper committed in submitting those questions to spirit, than the courts can settle those difthem, the judgment is affirmed.
ferences for them by undertaking to determine the true meaning of the contract made
by the parties but about which they cannot (245 Pa. 432)
agree. When capable business men reduce BAUER et al. v. BYRD. (No. 1.) their agreements to writing, and then dis(Supreme Court of Pennsylvania. March 2. agree about the meaning of their own written 1914.)
instrument, it is difficult for courts to ac1. LANDLORD AND TENANT (8 124*)—LEASE- curately define and exactly enforce their CONSTRUCTION – AGREEMENT TO FURNISH covenants according to the true intent of STEAM.
the parties, when the writing leaves the quesA provision of a lease that the lessor tion in doubt. But when the contracting should furnish without charge "live steam pressure through a 1-inch pipe as constructed parties will not or cannot agree, and resort from the boiler room at the present time" did to the courts for the enforcement of their not preclude the lessor from removing the ex- legal rights, it becomes the duty of the courts isting 11/2-inch pipe and replacing it by a 1-inch in considering the case to give due weight
in , or take in the execution of the lease.
to the pleadings, the written instrument, and [Ed. Note. For other cases, see Landlord and the surrounding circumstances, in deterTenant, Cent. Dig. 88 437–440; Dec. Dig. $| mining what those rights are and how they 124.*]
shall be enforced. This is a proceeding in 2. LANDLORD AND TENANT (8 124*) — CON
- CoN-equity, which follows the law, and since the STRUCTION OF LEASE-EVIDENCE.
Where, in a lessee's action to enjoin the law of a contract is the agreement of the lessor from substituting a 1-inch pipe for an parties, it is essential to first ascertain what existing 142-inch pipe, it appeared that the those rights are, before equity will provide lease obligated the lessor, in consideration of the remedy to enforce them. The bill filed stipulated rental, to furnish live steam pressure through a 1-inch pipe for the use of the lessees in this case prayed for an injunction to rein their laundry business, but was silent as to strain defendant from cutting off the steam the amount of pressure to be maintained, evi- or power, and from interfering with or redence to show how much steam was being furnished when the lease was made, and how much moving the pipes and connections which furdefendant continued to furnish thereafter, was nished steam to the laundry of appellees. admissible to show the intent of the contracting The lease in question provides as follows: parties.
“The said lessor shall furnish to the said les. [Ed. Note. For other cases, see Landlord and sees,
without charge, live steam Tenant, Cent. Dig. 88 437–440; Dec. Dig. S through a one-inch pipe as constructed from 124.*]
the boiler room at the present time.” 3. LANDLORD AND TENANT ($ 124*)-LEASE
It is a verred, that at the time of the exeAGREEMENT TO FURNISH STEAM-CONSTRUC-cution of the 1911 lease, the pipe which TION.
Though a lease, obligating the lessor in connected the boiler room to the premises consideration of, stipulated rental to furnish live occupied by the lessees, and through which steam for the use of the lessees in their laun. live steam was furnished, was 142 inches in dry business, through a 1-inch pipe, was silent as to the amount of pressure to be maintained,
diameter. It is therefore urged that, inasit entitled the lessees to receive a live steam much as the pipe in dispute here at the time pressure through a 1-inch pipe, in an amount of the execution of the 1911 lease was 14 sufficient to meet the reasonable requirements of their business and increases consequent on the inches in diameter, it must remain unchanginstallation of additional machinery, as con- ed, and cannot be replaced by a 1-inch pipe, templated by the contracting parties.
although the lease in express terms provides [Ed. Note.-For other cases, see Landlord and that the live steam shall
live steam shall be furnished Tenant, Cent. Dig. $8 437–440; Dec. Dig. $through a 1-inch pipe. The lease is under 124.*]
seal and was signed in the presence of a Appeal from Court of Common Pleas, Phil. witness. It was attached to and made part adelphia County.
of the bill of complaint filed in this case. Injunction by Louis C. Bauer and another, There is no allegation or proof of fraud, trading as the American Laundry, against accident, or mistake in the preparation and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
execution of the lease. The person who pre-, such additional machinery as was suggested pared the lease testified that the clause re- at that time, as the basis of their contractquiring live steam to be furnished through ual relations, and unless they expressly proa 1-inch pipe was inserted by the direction vided otherwise in the lease of 1911, as they and with the approval of Byrd, the lessor, did in respect to the diameter of the pipe, and Warnock, one of the lessees, who was the only reasonable inference is that they present when the terms were agreed upon. intended the conditions then existing with Bauer, the other lessee, admits in his testi- such changes and additions as were then mony that he told Byrd a 1-inch pipe agreed upon, to continue during the term would be sufficient. After the lease was of the new lease. Appellees need live steam prepared, and prior to its execution, copies to conduct their laundry business, and it is were submitted to all of the interested par- made the duty of appellant under the lease ties, who thus knew or had the opportunity to furnish that steam. How much is not defto know, what it contained before signing initely fixed, but as we view the situation, their names. The lease says that live steam appellant is obliged to furnish a sufficient shall be furnished through a 1-inch pipe, amount of steam to meet the reasonable reand the written instrument is corroborated quirements of appellees in their laundry by the testimony of the parties who signed business, based upon conditions existing or it and of the stenographer who prepared it. contemplated when the lease of 1911 was The only answer appellees make as to the made, if the same can be furnished through execution of the lease is that they were care- a 1-inch pipe. Why the parties agreed to less in signing. This is not sufficient. Under take steam through a 1-inch pipe, we do not these circumstances, the express provisions know, and this record does not inform us, of the lease relating to the 1-inch pipe must but it is so written in their contract and we be accepted as binding upon the parties, un cannot disregard it. less our eyes are closed to what was so plain
We, therefore, are constrained to hold ly written, and we declare as a matter of that it was error to decree that the appellees law that although the contract in unambig. are entitled to receive live steam through a uous language says one thing, it means 142-inch pipe connecting the boiler with something else. We find nothing in this rec- the machinery on the leased premises. What ord to warrant such a conclusion.
It they are entitled to receive is live steam necessarily follows that the decree, in so far through a 1-inch pipe, and in an amount as it requires appellant to furnish live steam sufficient to meet the reasonable requirethrough a 112-inch pipe, is erroneous.
Un- ments of their business, based upon condider the contract all that can be required of tions as hereinbefore stated, if that can appellant is to furnish steam through a 1-inch be done through a 1-inch pipe. pipe.
Decree reversed, and bill dismissed at the [2, 3] We fully agree with the learned cost of appellees. court below that nothing contained in the leases of 1909 and 1911 definitely fixed the
(245 Pa. 437) number of pounds pressure which the appel BAUER et al. v. BYRD. (No. 2.) lant was required to maintain in furnish- (Supreme Court of Pennsylvania. March 2, ing live steam. The lease of 1906 did contain 1914. Supplemental Opinion May 22, such a provision, but this was omitted in the
1914.) subsequent leases. What the lease of 1911 1. LANDLORD AND TENANT (8 124*)—LEASEdid require was that the lessor should fur
CONSTRUCTION – AGREEMENT FURNISH
STEAM. nish live-steam pressure through a 1-inch A provision of a lease that the lessor should pipe to the laundry of appellees. It is silent furnish without charge "live steam pressure as to the amount of pressure to be main-through a 1-inch pipe as constructed from the tained. Hence, the contract not having speci- clude the lessor from removing the existing 112
boiler room at the present time" did not pre. fied any amount of pressure, it was compe- inch pipe and replacing it by a 1-inch pipe, in tent to prove how much steam was being the absence of fraud, accident; or mistake in furnished when the lease was made, and the execution of the lease. how much appellant continued to furnish Tenant, Cent. Dig. $$ 437-440; Dec. Dig. $
[Ed. Note.-For other cases, see Landlord and after it went into force, for the purpose of 124.*] showing what the intention of the parties 2. APPEAL AND ERROR ($ 1009*)-FINDINGSwas and how they construed their own con EQUITY. tract in respect to the furnishing of steam. reversed on appeal except for manifest error.
A chancellor's findings of fact will not be The lessees were in the laundry business,
[Ed. Note.-For other cases, see Appeal and which was conducted on the leased premises. Error, Cent. Dig. $$ 3970–3978; Dec. Dig. Appellant, in consideration of the stipulated 1009.*] rental, agreed to furnish live steam for the 3. LANDLORD AND TENANT (124*)-LEASEuse of appellees in their business. The par AGREEMENT TO FURNISH STEAM-CONSTRUCties had in contemplation the conditions as they existed on the premises at the time the sideration of stipulated rental, to furnish live
Though a lease obligating the lessor, in conlease was made, and also the installation of steam for the use of the lessees in their laundry *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
business, through a 1-inch pipe, was silent as this as an established fact. On the question to the amount of pressure to be maintained, it of the obligation to furnish exhaust steam it entitled the lessees to receive a live steam pres
is conclusive. sure from a 1-inch pipe in an amount sufficient to meet the reasonable requirements of their It will be necessary to modify the decree in business, and increases consequent on the in- respect to furnishing live steam through a stallation of additional machinery, as contem- 112-inch pipe so as to require it to be furnishplated by the contracting parties.
[Ed. Note.-For other cases, see Landlord and ed through a 1-inch pipe, and the record will Tenant, Cent. Dig. $$ 437-440; Dec. Dig. be remitted for this purpose. Of course, if 124.*]
appellant chooses to continue furnishing live Appeal from Court of Common Pleas, Phil- steam through a 112-inch pipe rather than to adelphia County.
tear out these pipes and fittings and install Injunction by Louis C. Bauer and another, new ones, there can be no objection to his trading as the American Laundry, against doing so, but what we mean to decide is that John Byrd. From decree for plaintiffs, de he can only be compelled to furnish live fendant appeals. Modified and affirmed.
steam through a 1-inch pipe if he insists upon See, also, 91 Atl. 847, 850.
his rights under the contract.
 We repeat, what was said in the other T'he facts appear in Bauer v. Byrd (No. 1), opinion, that appellant under the terms of the 91 Atl. 847 and in the opinion of the Supreme lease is obliged to furnish a sufficient amount Court..
of live steam to meet the reasonable requireArgued before FELL, C. J., and MESTRE I ments of appellees for use in conducting their ZAT, POTTER, ELKIN, and STEWART, JJ. business on the leased premises, based upon
Ira J. Williams and Joseph P. Gaffney, conditions existing or contemplated when both of Phil:idelphia, for appellant. Joseph the lease of 1911 was made, if the same can R. Embery, of Philadelphia, for appellees. be furnished through a 1-inch pipe. In this
connection it should be observed that, at the ELKIN, J.  What was said in the opin- time of the execution of the 1911 lease, apion just handed down in another proceeding pellees contemplated adding certain addibetween the same parties applies to the pres- tional machinery and appliances to the equipent case. It will not be necessary to repeat ment of their laundry, and the rental was what was there said, nor will any useful pur-increased because of the additional cost in pose be served by discussing in detail the furnishing more steam to meet the new conseveral assignments of error in the case at ditions, and this must be taken into considerbar. That part of the decree in this case ation in determining how much steam appelwhich requires appellant to furnish steam lant is required to furnish. Any reasonable through a 112-inch pipe must be modified. interpretation of the lease of 1911 leads to In other respects the decree should be af- the conclusion that appellant should furnish firmed. We agree that appellant should fur- as much live steam as he was furnishing nish such pressure of live steam through a when that lease was made, and in addition, 1-inch pipe as the capacity of the boilers can should furnish steam sufficient to operate the reasonably produce, without any unfair ob- new machinery and appliances contemplated struction on the part of the defendant. It by the parties, and for which an increased was error to decree that appellant be re- rental was agreed to be paid. The only limquired to furnish live steam through a 112- itation placed upon this obligation of apinch pipe. The contract provides that the pellant was that the live steam be furnished live steam shall be furnished through a through a 1-inch pipe. The final decree 1-inch pipe, and we are not at liberty to dis- should be formulated so as to give force and regard what the parties themselves agreed effect to this view of the contractual obligato do.
tions of the parties.  As to the exhaust steam, we have concluded, taking into consideration all the facts
Supplemental Opinion. and circumstances disclosed by the record, Since · banding down this opinion, applicathe evidence was sufficient to warrant the tion was made for a modification of the definding that appellant at the time of making cree. The application was heard, but before the 1911 lease, entered into a contemporane- any decision was arrived at, the parties ous oral agreement to provide appellees with through their counsel concluded an agreethe same quantity of exhaust steam for their ment, stipulating the terms and conditions laundry business as they had theretofore re | upon which the steam was to be used and furceived under their prior tenancy, and that nished. We entirely approve this method of this contemporaneous oral agreement was adjusting differences, and direct a copy of the an inducement to the execution of the lease agreement to be filed with the record in this of 1911. This was a distinct finding of the case. When the record and agreement are learned chancellor before whom the testimo- remitted to the court below, a final decree can ny was taken, and such a finding will not be be entered embodying the terms and condireversed on appeal except for manifest er- tions upon which steam is to be used and ror. No such manifest error appears upon furnished in accordance with the provisions this record, and therefore we must regard l of that contract dated May 22, 1914.
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
The decree will be modified as herein in- , furnish with the same connections as existed dicated, and the record is remitted for this at the commencement of this suit, without purpose. Costs to be equally divided between any unfair obstruction; also that appellees the parties.
were entitled to exhaust steam. In the
case in which that decree was entered, there (245 Pa. 441)
was a reversal here, and the record was reBAUER et al. v. BYRD. (No. 3.)
mitted, with directions to modify the decree (Supreme Court of Pennsylvania. March 2, so as to require appellant to furnish live 1914. Supplemental Opinion May 22, 1914.)
steam through a 1-inch pipe, and in accordINJUNCTION ($ 219*) – DISOBEDIENCE OF DE- relating to the rights of the parties.
ance with the views expressed in that opinion CREE-CONTEMPT—APPEAL.
A decree, adjudging the defendant in an in In this state of the record appellant should junction suit guilty of contempt of court for dis- not be adjudged in contempt so as to make obeying decrees restraining him from removing this a permanent and binding decree of the a pipe which supplied a laundry with steam and from shutting off plaintiffs' steam supply, will court against him. It was the duty of appelbe reversed where it appears that such decrees lant to comply with the decrees of the learnare contradictory and erroneous with respected court below in good faith, but when those to the size of the pipe through which defendant decrees were conflicting and indefinite in is required to furnish the steam.
[Ed. Note. For other cases, see Injunction, some respects, and erroneous in others, the Cent. Dig. $$ 439-441; Dec. Dig. § 219.*] time has not yet arrived when it can be said
Appeal from Court of Common Pleas, that the facts constituting the contempt have Philadelphia County.
been clearly and satisfactorily established as Injunction by Louis C. Bauer and another, the rule requires. To permanently adjudge trading as the American Laundry, for rule one to be in contempt for violating a decree, to show cause why John Byrd should not subsequently determined to be of no binding be adjudged in contempt of court. From de force, would be an extreme and unjustifiable cree for plaintiffs, defendant appeals. Re-exercise of judicial power. versed.
Since writing and handing down the opinZAT, POTTER, ELKIN, and STEWART, JJ. ion in this case, the parties by an agreement
in writing have stipulated the terms and Ira J. Williams and Joseph P. Gaffney, conditions upon which the steam is to be used both of Philadelphia, for appellant. Joseph and furnished, and the court now expresses R. Embery, of Philadelphia, for appellees.
its approval of that agreement, which was ELKIN, J. This is an appeal from a de- in the future will be accepted as defining the
duly executed May 22, 1914. This agreement cree adjudging appellant to be in contempt legal rights of the parties and will be the for violating certain decrees of the court
guide to all concerned. below relating to the furnishing of steam to
Decree reversed and petition dismissed. appellees for use in their laundry business. Costs to be equally divided between the parThe decree awarding the preliminary injunc
ties. tion restrained defendant from cutting off the exhaust steam or lessening the supply of
(245 Pa. 411) live steam at a pressure of 60 pounds to the COMMONWEALTH ex rel. TODD, Atty. Gen., leased premises; and also from interfering V. GREEK CATHOLIC CHURCH OF with the pipes through which the live steam ST. MICHAEL THE ARCHANGEL. was furnished. After hearing, the final de
(Supreme Court of Pennsylvania. May 22, cree required appellant to furnish live steam
1914.) through a 112-inch pipe in the same manner | CORPORATIONS (8 49*)-TITLE TO CHARTERand to the same extent as it was furnished at FRATERNAL SOCIETY. the commencement of the suit. was fur An organized "brotherhood” obtained a ther ordered that appellant refrain from al-charter of incorporation designated by a Rustering or interfering with the 142-inch pipe. Catholic Church Brotherhood of St. Michael the This is one of the decrees, for the violation Archangel,” but in the English translation, of which appellant was adjudged to be in which also appeared in the charter, the word
"Brotherhood" was inadvertently omitted. Aftcontempt. We have just decided in another er this charter had been used by the members of case that appellant was only required to fur- the brotherhood for nine years, a church connish live steam through a 1-inch pipe under gregation styled the "Greek Catholic Church of the terms of the contract. Hence the decree St. Michael the Archangel” was formed by
such members. Held, that the brotherhood, and requiring him to furnish live steam through not the congregation, was the owner of, and a 142-inch pipe, being improvidently entered, had the sole right to operate under, the charter. was reversed.
[Ed. Note. For other cases, see Corporations, The other decree adjudged appellees to be Cent. Dig. § 137; Dec. Dig. $ 49.*] entitled to such pressure of steam, for use Quo warranto by the Commonwealth, on. in their business, through a 142-inch pipe, as the relation of M. Hampton Todd, Attorney the capacity of the boilers may reasonably General, against the Greek Catholic Church
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes