Reilly et al. vs. Kaufmann Department Stores, Inc. dows a considerable expense and closed up an archway which had connected the storeroom with another alongside of it, and put in an elevator to the upper stories of the building. They also raised the floor of the back part of the store a foot or so above the level of the floor and put in a tile floor in front, and put a wainscoting against the wall around the back or raised part of the storeroom, and set up throughout the store counters and show cases. The wainscoting in question, as well as the show cases, was made of mahogany. It was seven feet high and extended around each side of the room except at one corner where a small office was made by a glass partition of the same height, which came out some distance into the room. This wainscoting was made at the same time and by the same persons as the show cases, and corresponded in design with them. Attached to the wainscoting at various parts were shelves to hold objects to be displayed, and below them, drawers; and at several places in the wainscoting there were large mirrors inserted. The wainscoting was fastened to wooden pegs driven between the bricks, and the partition was fastened to the floor. It appeared from the books of E. P. Roberts & Sons that the cost of the wainscoting and partition was included in the fixtures account kept by them, while the cost of the elevator and show windows, etc., were kept in an chandeliers which were in the building, and stored them in the second account called "improvement account." The lessees also took out the old story, and put in massive chandeliers of brass or bronze, especially designed, and also put electric lights at various places in the show cases and at the side of the wall, where no lights had been before. Third. In June, 1913, E. P. Roberts & Sons assigned all their interest in the leasehold in question to Kaufmann Department Stores, Incorporated, the defendant herein, this assignment being made with the consent of the owners. Fourth. In March, 1914, a short time before the expiration of the lease, which was April 1, 1914, the defendants began to remove the show cases, counters, chandeliers and wainscoting above mentioned, whereupon the bill herein was filed, and upon application of the plaintiff a preliminary injunction was granted, forbidding the removal, inter alia, of the wainscoting, chandeliers and partition. Fifth. It was the intention of the defendant to make use of the wainscoting and partition, along with the show cases and other fixtures removed, to set up a jewelry department in their Department Store. Sixth. After the expiration of the lease the plaintiff leased the premises to a tenant who intended to use the same as a restaurant, and the partition, chandeliers and wainscoting were removed by the plaintiffs and sold by them at public auction, after notice in the newspapers and notice to the defendant. CONCLUSIONS OF LAW. First. The first question to be determined is whether the covenant not to remove improvements made on the premises deprived the defendants of the right of removing what would otherwise be trade fixtures. As it was in the contemplation of the parties that new flooring, an elevator and similar constructions were to be placed in the building, the word "improvements" in the lease was an apt word to describe such additions, and we see no reason to suppose that the parties meant to prohibit the removal of ordinary trade fixtures. The case seems to be ruled by that of Lindsay Brothers vs. Curtis Publishing Company, 236 Pa., 229. Second. As to the chandeliers there can be no question that they are not only removable fixtures as between landlord and tenant, but are personal property as between vendor and vendee. This was decided as to gas fixtures by the case of Vaughn vs. Holman, 33 Pa. St., 522, and Jarechi vs. Reilly et al. vs. Kaufmann Department Stores, Inc. Philharmonic Society, 79 Pa. St., 403. While the chandeliers in question were for electric lights, we are unable to see that there is any substantial difference between a chandelier made for gas light and one made for electric light, or, as they are very commonly made, for both. The mode of attachment to the source of light is somewhat different, but the difference does not seem to be material. Third. The mahogany wainscoting and partition if not put in for the purposes of the trade of the lessee, would not be removable fixtures. From the facts found, however, as to the character of this wainscoting and its use and the manner of attachment, from the evidence of the intention of the parties who put it in, furnished by their method of keeping their accounts, and the fact that it was in fact taken out by the lessor as unsuitable to the trade of the incoming tenant and that it was especially adapted to the trade of the tenants who put it in, we are of opinion that this wainscoting and partition were trade fixtures, and therefore removable by the defendants. Fourth. If these conclusions be correct it follows that the preliminary injunction heretofore granted must be dissolved as to the chandeliers, wainscoting and partition. The respondent contends that the Court has jurisdiction in this case to assess the damages which have been suffered by it by reason of the granting of the preliminary injunction, and to make a decree against the plaintiffs requiring them to pay to the defendant the amount of such damages. This is denied by the plaintiffs. Some evidence was given by the defendant of the peculiar value to it of the articles in question, and evidence was given by the plaintiffs of the amount for which these articles were sold by them at auction. The question thus raised does not appear to have been discussed in any of the Appellate Courts of this Commonwealth. The diligence of counsel and of text book writers on injunctions has discovered no case in this State in which the matter is discussed, except that of Hutchins vs. Rodgers, 22 W. N. C., 79, in one of the Common Pleas Courts of Philadelphia. The text writers state the rule to be that a Court of Equity has no such jurisdiction unless it is conferred by statute; High on Injunction, Sec. 1657; Joyce on Injunction, Sec. 211-a; and these statements appear to be fully supported by the cases there cited from many jurisdictions. It is undoubtedly true that it is a general rule that when Equity has taken jurisdiction of a subject matter it will dispose of the whole inatter without relegating the parties to their legal remedies. The damage to the defendant caused by the granting of a preliminary injunction, however, is not a part of the subject matter of the suit; it is something which cannot appear in the pleadings and it arises not out of the matters in controversy, but from the conduct of the plaintiff in asking and procuring a civil remedy to which he was not entitled. It is well settled that a plaintiff is not liable to a defendant for the consequence of his prosecuting any civil remedy, unless his conduct is fraudulent or malicious. To protect defendants against the consequences of the improper granting of restraining orders and preliminary injunctions, it was the practice of the Court of Chancery to require the plaintiff, as a condition of obtaining the injunction, to give a bond to the defendant, or for his use, to indemnify him. As the granting of an injunction is theoretically not a matter of right, the Court of Chancery could attach to it any condition which it thought proper. The statutes of Pennsylvania conferring chancery powers on the courts, forbid the Court from issuing injunctions without such security. The bond so given is therefore the source and the measure of the plaintiff's liability, and he can recover no damages except upon the bond, unless he shows fraud or malice in the plaintiff. It is difficult to understand how the Court in Equity whose jurisdiction is confined to the matters alleged in the bill, expressly or by implication, acquires power to enforce a common law obligation given in the course of a proceeding as a pre-requisite to relief. Further than this, it is Reilly et al. vs. Kaufmann Department Stores, Inc. not easy to see how a Court in Equity can enter any decree for the payment of damages, directly or for the payment of the penalty of the bond against the sureties on the bond who are not parties to the cause. We are therefore of opinion that the remedy of the defendant in such case is to be had by an action for the penalty of the bond, against those who executed it. Fifth. Even if the rule not as above stated and the Court has jurisdiction as claimed by the plaintiff, it seems to us that it is not to be exercised by hearing evidence as to what would be the loss of the defendant if the injunction should be dissolved, as a part of the case to determine whether or not it should be dissolved. If the method attempted to be pursued in this case is right, it becomes the duty of the defendant to give evidence of all the different damages which may accrue to him upon all possible cases of a dissolution or partial dissolution of the injunction, and for the plaintiff to be prepared to answer all such possible cases, and all this without any pleadings alleging the loss or giving any notice of what is proposed to be proved. If the Court has the jurisdiction claimed for it, it certainly ought not to be exercised until the preliminary injunction is in fact dissolved. Otherwise there will be a trial in each such case of matters which probably, and in fact presumably, will never be in question, as a preliminary injunction is not to be granted unless the plaintiff seems to have a plain case. For the reasons given in this and the preceding paragraph, therefore, we are of opinion that the Court should not in this case undertake to assess the damages suffered by the defendant by reason of the dissolution of the preliminary injunction, if it should be finally determined that the injunction is to be dissolved. Sixth. As we understand the evidence in this case, there never was any claim on the part of the defendant that it had a right to take away from the building, nor did it offer or threaten to take away, anything except the chandeliers, wainscoting and partition above mentioned, although the preliminary injunction does mention other matters. Being of opinion, therefore, that these items were fixtures which the defendant had a right to remove, the bill should be dismissed; and as these were the only matters in controversy, the costs should be paid by the plaintiff. It is therefore ordered that the preliminary injunction heretofore granted be dissolved, and that the bill be dismissed at the cost of the plaintiff. Where the evidence is sufficient to justify the divorce by a wife from her husband on the ground of cruel and barbarous treatment, and proceedings for divorce are instituted on the ground of desertion and service is secured by publication, a divorce cannot be granted on the uncorroborated testimony of the libellant, the effect of which makes out a case of cruel and barbarous treatinent of the wife by her husband which shows no legal ground to justify the charge of desertion. In Divorce. No. 2431 October Term, 1913. C. P. Allegheny County. Robert M. Ewing, for libellant. EVANS, J., November 7, 1914. - On September 30, 1913, the Libellant, Hildur C. Nelson, presented her Libel in Divorce praying for subpoena Directed to her husband, Alexander Gustave Nelson. The cause alleged is "That the said Alexander Gustave Nelson did on or about September 1907, absent himself from the habitation of your petitioner without reasonable cause and has continued in such desertion ever since." The Respondent was served by publication, and the wife testified to the following state of facts: That she was married to the Respondent on the thirtieth of November, 1904, in the State of New York, and that they lived together in the State of New York until 1907. That the husband began to drink shortly after they were married and beat her on very many occasions until people had to come and take him away, and to such an extent that sometimes she was not fit to go on the street, her face was so disfigured. She then testified as follows: "Q. What were the circumstances in connection with your separation? A. He abused me in every way. Q. You may state whether he did put you out of the house. (The Court) Q. Just tell us the circumstances of your separation. A. Well, as soon as I was married, he started to drink, and come home and abused me in every way and beat me and drank, and many a time he beat me and people had to come in and take me away from him. (Mr. Ewing) Q. Coming down to the time he left the house, tell us about that. A. Well, four months before I left him he beat me so I couldn't show myself on the street for a whole week, I was so disfigured in my face. Q. Coming down to the circumstances of leaving the home, whether or not you had to leave, or what the circumstances were. A. Well, he was drinking all the time, and I had to go out and work for my living to support the child, and I couldn't stand it any longer, I was all worn out. He always come home and asked me for money, and beat me in every way, and if I couldn't give him money he always beat me. Q. After you left the house, where did you go? A. I went out to work. Q. Did you see him after that? A. I met him on the street about three months after, and he beat me on the street and he was arrested. Q. What did he say to you that time? A. He wanted money from me. Q. Did he know where you were all this time? A. Yes, he knew where I was. Q. Did he come to see you or communicate with you at all? A. No. Q. Did he make any statement to you about your leaving-whether he wanted you to leave or not? A. Well, he didn't say anything; he just wanted me to work and give him. money." It seems perfectly clear to me that that was not desertion on the part of the husband. The wife has probably made out a very good case for cruel and barbarous treatment, but the difficulty of her situation is that Nelson vs. Nelson. her case is made out entirely by her own testimony, and where the grounds of divorce are cruel and barbarous treatment, she is not a competent witness where service is had by publication. And it was no doubt to make her a competent witness that the grounds were alleged as desertion instead of cruel and barbarous treatment. But we cannot shuffle the law in any way. There is no pretence that this husband deserted his wife. On the contrary, the evidence was that he desired the family relation to continue and that she should work and support him. It was the wife that broke the family relation, and if she was justified and can prove it by competent testimony, she may be able to get a divorce. And now, November 7, 1914, for the reasons set forth in the above opinion, the divorce is refused. Price vs. Etna Connelisville Coke Company. Mines—Act of May 15th, 1893-Owners-Duty to employees-Negligence of mine foreman-Liability of owner. While under Rule 3 of Article XX of the Bituminous Mining Act of May 15, 1893, making it the duty of the mine foreman in bituminous coal mines to see that the entries, at places where road grades necessitate sprags or brakes to be applied or removed, shall have a clear level width of not less than two and a half feet between the side of the car and the rib to allow the driver to pass his trip in safety, the owners of the mine are not responsible for the negligent performance by the mine foreman of the duties imposed upon him by statute, yet if any condition affecting the safety of the minę is brought to the attention of the mine owners, or their superintendent, it is their duty to take the proper steps to correct it, and if the owners of the mine, or their superintendent, have knowledge that the mine foreman is negligent in the performance of his duties, or that the mine is in a condition which endangers the safety of the workmen, it is their duty to act promptly and have the danger to the safety of the man removed and for negligence in these respects on the part of the mine owners, or their superintendent, the owners of the mine are responsible in damages. Where the negligence charged against a defendant company is its failure to perform a statutory duty, questions relating to assumption of risk by the plaintiff do not arise. While Section 1 of Article XXII of the Act of May 15, 1893, provides that the act shall not apply to any mine employing less than ten persons in any one period of twenty-four hours, yet even if it has not been shown by the evidence that the mine is one in this respect to which the act is applicable, and the case is tried throughout on the theory that the mine is one to which the act applies, the defendant invoking the aid of the act in an attempt to relieve itself from liability for the plaintiff's injuries by placing the responsibility on the mine foreman, for whose negligence the defendant company is not liable under the act, the latter cannot be heard to allege after verdict that the act is not applicable to the mine, in question. Motions for judgment non obstante veredicto and for a new trial. No. 389 March Term, 1913. C. P. Fayette County. Linn V. Phillips and R. W. Playford, for plaintiff. VAN SWEARINGEN, J., November 17, 1914.-The jury returned a verdict for the plaintiff for $500, and the defendant has filed a motion for judgment for the defendant non obstante veredicto. The action was for personal injuries received by the plaintiff while employed in a bituminous coal mine of the defendant company, in Redstone Township, known as the Garwood or Dunlap mine. The plaintiff was engaged in the work of bringing loaded cars out of the mine, each trip consisting of two cars. A portion of the distance out of the |