the date at which the property was advertised to be sold under the writ, it was destroyed by fire: Held (affirming the judgment of the Court below), that the policy was not defeated. Per STERRETT, P. J. (Approved PER CURIAM). The condition has special, if not exclusive reference to personal property, which when levied upon is usually seized in fact and remains, until sold, in the custody of the sheriff and his employees, who cannot be expected to guard it with the same degree of care that the owner would. The phrase "levied on" does not mean a technical levy unaccompanied by actual seizure and change of possession, and has no application ordinarily to proceedings by writ of levari facias for the sale of real estate. Error to Common Pleas No. 1 of Allegheny County. Covenant by John O'Maley and wife to the use of Mellon Bros. against the Manufacturer' and Merchants' Insurance Co. on a fire insurance policy for $1000 upon the plaintiffs' house in Mansfield. The pleas were covenants performed, absque hoc with leave, etc. On the trial the plaintiffs offered in evidence a policy for one year from April 4, 1874, containing inter alia the following condition :— ference with her possession by the sheriff or any Such a construction, having no practical bearing on, or connection with the risk, surely could not have been intended, and should not be given unless there is no escape from it. If the condition is construed as having in view a loss attended with an actual seizure and interference with the possession of the insured, whereby the risk might be increased, we can at once recognize its wisdom and propriety; and doubtless it was this that was intended and nothing more. The condition in question has special if not exclusive reference to personal property, which when levied on is usually seized in fact and remains in the custody and possession of the sheriff until it is sold. This works an involuntary change of possession-takes the property out of the owner's contro and leaves it in charge of the sheriff and XI. The insurance by this policy shall cease at and hi employees, who cannot be expected to guard from the time that the property hereby insured shall it with the same degree of care that the owner be levied on, or taken into possession or custody, under would. Hence, a levy and actual seizure necesany proceeding in law or equity; and in case of sale of the property insured, or cessation of the risk other-sarily increases the risk, and it is this that the wise than by fire, a return premium will be made, if applied for within thirty days thereafter, the company retaining the short period rate of premium for the expired time; provided, however, that no premium shall be returned for a less period than one month. It appeared that in September, 1874, judgment was entered against the plaintiffs in proceedings on a scire facias sur mechanics' claim, which had been filed against the insured premises after the policy was issued, that in October, 1874, a levari facias was issued on the judgment and placed in the hands of the sheriff by whom the property was advertised to be sold on the 7th of December, 1874. Just before the latter date the insured property was destroyed by fire. The Court instructed the jury to find for the plaintiff subject to the opinion of the Court in banc on the following point reserved, viz: "whether under the 11th condition of the policy (recited supra) the insurance ceased, and the liability of the company was ended before the loss occurred by reason of the proceedings had on the mechanics' lien." Verdict accordingly for plaintiffs for $1041. Subsequently the Court entered judgment for the plaintiffs on the point reserved, STERRETT, P. J., in delivering the opinion, saying: "The company received the ordinary premium for the risk assumed. The building was occupied by the insured and her family all the time, without any inter condition is designed to guard against but it has no applicability in the case of a technical seizure, unattended by change of possession or increased risk. We conclude, therefore, that the phrase "levied on," as employed in the policy, does not mean a technical levy, unaccompanied by actual seizure and change of possession, and has no application, ordinarily, to proceedings by writ of levari facias for the sale of real estate. In The Commonwealth Insurance Co. v. Berger, et al. (6 Wright, 285), a condition precisely the same as that before us was construed by the Supreme Court. In that case, after the policy was issued and before the fire occurred, an execution was placed in the hands of the sheriff, and a levy was made on the goods of the insured, but they were not taken into the custody of the officers, or left in charge of a watchman, nor was the actual possession of the insured disturbed. While this condition of affairs existed the goods were destroyed by fire, and the insurance company defended against payment of the loss on the ground that the insurance ceased when the levy was made. The Court held that the levy did not terminate the risk and that the company was liable. The principles of this case, rule the one before us; the fact that the levy was on personal property can not change the principle of construction. If there is any difference the reason would be still stronger in the case of a levy on real estate which is always a mere technical seizure without any interference with the possession-at least until after the sale. The plaintiff is therefore entitled to judgment." The defendant took this writ assigning for error the entry of judgment for the plaintiffs on the point reserved. IV. L. Chanfant, for the plaintiff in error. The law of the relation between insurer and insured is the policy. By its clauses, conditions, and stipulations their mutual rights and liabilities are to be defined, whether such provisions be material to the risk or not. But in the present case the risk was increased, for it is a fair presumption that the insured did not take the same care of the property as formerly. when about to be dispossessed by the sheriff's vendee. This is recognized in Brown v. Ins. Co, (5 Wr. 187). W. H. Sutton & Son, contra. The principle that in a policy capable of two interpretations equally reasonable, the one most favorable to the insured must be adopted, has been applied to the identical condition in question. Ins. Co. v. Berger, 6 Wr. 285. Oct. 16. THE COURT. The judgment of the Court below is sufficiently sustained in the opinion of Judge Sterrett. Judgment affirmed. grounds for reversal. It is not the duty of the Court, in charging the jury, to follow counsel in an elaborate presentation of the evidence, according to their different theories. It is sufficient if the Court presents the leading features of the evidence on each side fairly, so as to recall to the mind of the jury the respective suppositions of counsel. Error to the Common Pleas of Monroe County. These were two amicable actions of covenant against the Penn Mutual Insurance Company upon policies of insurance on the life of Monroe Snyder. One action was brought by the widow of decedent upon a policy for $5000, and the other by the son of decedent upon a policy for $10,000. The suits were originally brought in Carbon County, but the record was afterwards removed to Monroe County, where they were tried. It was undisputed that Monroe Snyder had been found drowned in Monocacy Creek on Feb. 22, 1873. Defendants contended that he had committed suicide, and that there could be therefore no recovery on the policies. Plaintiffs, on the other hand, contended that he had been murdered. A large amount of circumstantial evidence was given on each side. After a trial lasting five days the Court below (DREHER, P. J.) reviewed the evidence in a charge filling fifteen printed pages of plaintiff in error's paper-book, and which concluded as follows: "I have endeavored, gentlemen of the jury, to call your attention to the circumstances relied upon by the plaintiff and by the defendant each to prove their different theories. All these facts and circumstances have been so fully and ably discussed and reviewed by counsel on both sides that they must be fresh in your recollection. You must take this case, because it is a case for you entirely; and giving to every circumstance and fact that has been proven in it the weight that you think it deserves, come to such a verdict or finding as your consciences and your judgments as men and impartial jurors lead you to under the evidence in the case. As you settle the question whether Monroe Snyder committed suicide you will have settled your verdict. If the defendant has succeeded in satisfying your minds that Monroe Snyder killed himself, then your verdict in both cases should be in favor of the defendant. If it has not carried conviction to your minds that he did kill himself, then your verdict should be in favor of the plaintiffs," etc. Defendants excepted to this charge, and requested that it be reduced to writing and filed of record for review by the Supreme Court, which was accordingly done. Verdict for Anna Maria Snyder for $5486.66, and for Lewis Wilson Snyder for $10,973.33. Defendants took this writ of error. All the assignments of error related to the charge of the Court, and were to the effect that the charge was not a full, complete, or fair presentation of the disputed questions of fact, and that the learned Judge omitted to refer to some of the most important facts and theories on which the defendant relied, and failed to comment as fully as he should upon certain portions of defendant's evidence. Edward Harvey and R. E. Wright & Son, for plaintiffs in error. It is a misconception of judicial duty for a Judge to charge on the facts of a case. He is apt to present them in a narrow and limited way. Hence our Courts have ruled that they will carefully scrutinize the whole charge and will reverse if the Judge is convicted of misdirection or if his Court to follow the counsel with an elaborate charge is calculated to mislead the jury. Bailey v. Fairplay, 6 B. 456. The present case depended upon circumstantial evidence. A great variety of circumstances, each of itself insufficient, but when combined, of great presentation of the evidence according to the different theories, and arrange the different circumstances so as to present every one in the precise order that the counsel advocating the particular theory may think will exhibit it best. It is sufficient if the Court presents the leading features of the evidence on each side fairly, so as to bring the respective suppositions before the mind of the jury, leaving them to fill out the outlines with the minuter details of the evidence, brought into review by the arguments of counsel. On a careful power, was submitted to the jury. We presented evidence of undue feeling or bias. The Judge reading of this charge, we cannot discover any our hypothesis, and arranged the facts to prove it. But the learned Judge took no notice of this. seems to have laid the case before the jury in a It is true he said to the jury that we must prove with entire fulness. spirit of ordinary fairness, though perhaps not that Monroe Snyder took his life, but he did not fact and circumstance having a bearing on each He did not call up every arrange our evidence in its proper order so as to branch of the case, and it would be remarkable if, give force and effect to our theory. In his state-in a cause pregnant with so many circumstances, ment of facts he omits some of the most impor- he could do so. When a charge is manifestly tant, and states others in a way calculated to mislead the jury. He makes no reference to one-sided, or when it misleads a jury by turning many important items of our evidence, and his away their attention from the important and comments upon others were not fair to the defen-essential aspects of the case to those which are dant. Kauffman v. Griesemer, 2 C. 407. But in this case the Judge has not mis-stated any fact, nor has he stated them inaccurately, nor is there any real ground even for suspicion that the jury were misled. It will be almost impossible for this Court to decide whether most of the assignments of errors are well founded unless they read the 497 pages of evidence taken; but a perusal of the charge will show that the Court immaterial and indecisive, and thus leads to an unjust and erroneous verdict, this Court will reBut such an error must be clear to our minds beverse. The cases cited abundantly show this. fore we set aside a trial. Hence mere omissions of portions of the evidence, and even slight misstatements, that evidently have not controlled the verdict, are not regarded as a ground of reversal. We must feel convinced that the charge as a whole has led the jury astray. We do not see that in these cases. PER CURIAM. Judgment affirmed. WILLIAMS, J., absent. [Cf. Blair Iron and Coal Co. v. Lloyd, ante, 103, and cases referred to in note.] below presented the points in dispute fully and Common Pleas-Equity. fairly. March 30. THE COURT. Though some of the members of this Court incline strongly to the belief that this was a case of suicide, yet none of them see how it is possible to reverse this judg. ment. The question whether Monroe Snyder died by his own hand or was murdered, was one of fact dependent upon many circumstances, and necessarily fell within the province of the jury In such a case, the theories or suppositions of the case were matters to be elaborated by the counsel on each side, on whom fell the burthen of marshalling the facts. It is not the duty of the tract of land with a hotel thereon erected, at the corner of the defendant corporation's road and the Bustleton turnpike; that the defendant maintained a toll-gate and house near the said corner, and had inclosed a strip of its road, as a garden for the gate-keeper, adjacent to the toll-house, 191 feet long and directly in front of the complainant's property, and had built from the further end of the garden a fence to the end of the wing wall of a bridge over Tacony Creek, one boundary of the complainant's property, thus obstructing for the distance of 475 feet the complainant's access to the road of the defendant; that to obviate this obstruction the complainant had recently opened a road from his hotel to the defendant's turnpike, at a point below the garden, in order to give travellers to and from the city a means of approach to his hotel; but that the defendant had built a new fence across the opening; that this fence was a nuisance and injured the value of his property; and prayed (by the prayer as amended) for an injunction requiring the defendant to remove the fence, and to restrain him from obstructing plaintiff's access to the road. The cause was referred to a Master (C. Stuart Patterson), who held that it was not a case for the exercise of equitable jurisdiction. A mandatory injunction to abate a nuisance is matter of grace, and will only be exercised in cases of immediate and irreparable mischief. (Mayor v. Spring Garden, 7 Barr, 366; Gray v. R. R. Company, 1 Grant, 412; Att'y Gen. v. Nicholls, 16 Ves. 342; Neal v. Gallagher, 1 WEEKLY NOTES, 99; Rhoades v. Dunbar, 7 Sm. 287; Richards' Appeal, Id. 105; Hackenstein's Appeal, 20 Sm. 107.) The complainant having free access to the road for eighty feet, the obstruction of a portion of his front by the defendant's user of a strip of its own roadway, for a legitimate purpose under its charter, could be compensated in damages. Moreover, the obstruction had existed for sixty years, and had been acquiesced in by the complainant and his predecessors in title; and the injunction, if granted, would result in great injury to the defendant, and very little present benefit to the complainant. To this report the complainant excepted, founding his reasons upon a denial of the conclusions of Letchworth, for the exceptions. The complainant had a right to the convenient use of his property. The bill was filed to determine whether there can be a right to block up 475 feet of a man's property. No action at law would remove the fence. Under the Master's finding it would be the duty of property holders adjacent to turnpike gates to assist the company in collecting their tolls. There is no such duty. John G. Johnson, contra. The complainant cannot come into a Court of Equity without damage and ask for what would be a great injury to us. There is a remedy at law, let him indict us for the nuisance. Hammersly v. The Germantown and Perkiomen The defendant demurred, because there was n the Master. adequate remedy at law, and no equitable jurisdiction to give the relief prayed for; and also answered, inter alia, that under its charter it was authorized to lay out a road, to erect bridges, to fix gates and collect tolls from persons using the road, and it had the right to do all the acts complained of; that about sixty years before the filing of the bill, the toll-house therein mentioned had been erected, about 80 feet from the junction of the Frankford and Bustleton turnpikes, and also a gate; that the garden is necessary for the accommodation of the toll-gatherer, used solely by him, and is inclosed in a manner not to obstruct the roadway of the turnpike; that the fence connecting the garden with the bridge had been built about the same time as a safeguard for the protection of passers-by against danger, there being a declivity towards the creek; that the complainant's predecessors had not complained of the obstruction; that in opening his roadway the complainant had torn down part of the garden fence and cut down trees, and that the defendant had rightfully repaired the fence; that the complainant was not in fact prevented from entering his land, as there was a foot passage; but that his object in making the roadway was to induce people to come to his hotel by enabling them to drive round behind the toll-gate; and that during the few days the road had remained open many people had so evaded their tolls; that, moreover, access to the hotel from the turnpike could be obtained between the toll-gate and the Bustleton road, there being a vacant strip of 80 feet along that pike; and that the land obstructed was used merely for grazing purposes. There was no injury to the Turnpike Company unless the damage was malicious, which it has not been shown to be. Dec. 30. THE COURT (after stating the facts): We cannot agree with the learned Master. The plaintiff has an undoubted right of egress and ingress at every point of his front upon this public highway, subordinate only to the defendants' right to maintain the toll-house, and to erect a barrier to prevent travellers from falling over any embankment upon which this road may be laid. To the extent that the fence is erected beyond the toll-house garden, where it is not necessary for the protection of travellers, it is in contravention of the plaintiff's rights. It is not forgotten that there was an old fence in or near the ground upon which the new one is erected. It does not appear who built or It was not averred to be a copy of original maintained it. If built by the company for any entries, except by endorsement of counsel on the other purpose than one authorized by its charter, back of the paper filed. The affidavit suggested such as to protect travellers, it would not be law-that the copy filed was insufficient: (1) Because ful, and we are averse to deciding that an unlaw- it nowhere appears that the said copy is a copy ful barrier, serving no corporate purpose, along the front of a man's property, maintained by a company, can become lawful by lapse of time. It appears, however, that the plaintiff and his predecessors in the title had free access over this part of his front through the old fence. Had the learned Master found that the road opened by the plaintiff was opened to enable travellers to evade the payment of tolls due, and had there not been a plain mistake in that finding, the decree asked for should be refused. The Master finds that the defendant will lose tolls, and thereby will suffer more damage than the plaintiff will by the maintenance of the fence. The defendant can collect tolls at any point on its road; it can call to its aid the punitory provisions of its own charter, and of the general turnpike road law; but we cannot decide that it has the right of blocking up almost the entire front of an owner of land bounding upon its road. We decide in this case that the defendant cannot control the plaintiff in what he thinks is convenient use of his own land; that the plaintiff's right to pass to and from the highway at any point of his front is absolute, and that, notwithstanding the finding of the Master, he is entitled to relief, and that a court of equity should afford it. And now, December 30th, 1876, the amended prayer of plaintiff granted, so far as the said fence below the garden is not necessary to insure the safety of travellers; and the case is referred to C. Stuart Patterson, Esq., to report how much of said fence between said garden and the wing walls of the bridge may be removed without endangering the lives, limbs, and property of travellers upon the turnpike road. Opinion by YERKES, J. LUDLOW, P. J., dis sents. of plaintiff's book account (except by the statement of counsel), . . . and deponent suggests that it should appear positively and affirmatively on the copy filed that the same is a copy of plaintiff's book account; (2) Because there is a variance between plaintiff's book account and the copy filed. Mc gart on a lease made by plaintiff to the defendant, contract was distinct, and he should have been Kingston, contra, cited— Kleckner v. Klapp, 2 W. & S. 44. Rule absolute. Common Pleas—Law. C. P. No. 2. Snyder v. Richardson. Dec. 16. Assumpsit on a promissory note. The plaintiff filed a copy of the note, and defendant filed an affidavit of defence; a rule for judgment for want of a sufficient affidavit was discharged; Affidavit of defence - Book entries-Practice plaintiff then entered a rule to plead, notifying disputed.defendant of his election to treat the a narr., and of the rule to plead. Edw. R. Worrell, for the plaintiff, contended that the copy filed was a sufficient statement in where accuracy of copy of entries is Rule for judgment. Assumpsit on a book account. The copy filed was headed "Mr. F. Richardson bought of M. K. Snyder," etc. lieu of a narr., citing— copy filed as |