author: Mays, J.,

text:
    Merchants' Securities Corp. v. Clinton Motors Corp.

      John A. Moss, for plaintiff; Ellis Brodstein, for defendant.
    Dec. 3, 1928.
   Mays, J.,

This is an action in assumpsit. Plaintiff declares upon an oral agreement, to the effect that, in consideration of the plaintiff purchasing the commercial paper of one Carl A. Miller, defendant’s agent, for Clinton motor-trucks sold by him, defendant was to pay to plaintiff the balance due on said paper in case the plaintiff should be obliged to repossess from the purchasers trucks so purchased, provided, first, that one-third of the purchase price was paid in cash; second, that the arrangement did not exceed a period of fifteen months; and, third, that the purchaser was not in arrears on monthly payments more than sixty days. The statement then avers that said agreement was approved by defendant by a letter (marked Exhibit “A”), stating that the defendant was willing to co-operate with the plaintiff as to the resale of Clinton trucks which the plaintiff might from time to time have to repossess from purchasers of same; and that said agreement was further evidenced by a written agreement (marked Exhibit “B”), which says, in substance, that defendant is to be responsible for any obligations entered into bteween the plaintiff and Carl A. Miller, defendant’s agent, provided: (a) “That this guaranty will pertain only to such contracts on which we (meaning defendant) give you (meaning plaintiff) our O. K.;” (b) “that we are to give you the balance due you on any account upon delivery of truck, covered by said account, to us at our factory;” and (ó) “that no payment is to be more than thirty days in arrears.”

The defendant has filed a statutory demurrer raising a number of questions of law. As we view this matter, it will not be necessary, for the present at least, to pass on all the questions raised. In order that questions of law which are raised may be properly disposed of, it is quite essential that the statement of claim conform to the provisions of the Practice Act, 1915. We are presently concerned with but one inquiry, viz., are the facts in the plaintiff’s statement of claim set forth exactly and concisely so that the defendant can make answer? We think not. The correctness of this conclusion, we believe, is manifest from a reading-of the paragraphs setting forth the alleged oral and written agreements.

Under the Practice Act of May 14, 1915, P. L. 483, the facts of plaintiff’s statement of claim must be set forth exactly and exhaustively, so that the defendant may similarly set forth the facts of the defense, whereby the issue is brought out with certainty and clearness. If the allegations are so made that no concise or responsive answer can be made by the defendant, the statement is fatally defective: Shane Bros. & Wilson Co. v. Painter, 1 D. & C. 734. It seems to be established that the proper method of raising a question of nonconformity is by motion to strike off, under section 21 of the Practice Act, 1915, as amended by the Act of May 23, 1923, P. L. 325, and not by affidavit of defense (A. Ferraro & Co. v. Pennsylvania R. R. Co., 65 Pitts. L. J. 601; Hausman v. Breinig, 2 D. & C. 273), though a motion of this character may be embraced in an affidavit raising questions of law: Cameron v. Fishman, 291 Pa. 12. Here the defendant did not specifically assign the plaintiff’s failure to conform to the provisions of the act, as above pointed out, as a reason in support of the statutory demurrer. It seems proper, however, to treat the demurrer as in effect a motion to strike off the statement.

Being of the opinion, therefore, that the statement of claim does not conform to the provisions of the act, in order to obviate any delay, and in view of the authority conferred on the court to make such order as may be just,

It is ordered and directed that plaintiff’s statement of claim be and the same is stricken from the record, with leave to the plaintiff, however, to file, within fifteen days from this date, a new statement of claim.

From Charles K. Derr, Reading, Pa.


source: Caselaw Access Project

author: Patterson, P. J.,

license: Public Domain

text:
    First National Bank of Philipsburg v. Calahan & Co., Inc., et al.

      Singleton Bell, Woodcock & Woodcock and George W. Zeigler, for First National Bank of Philipsburg, Pa., plaintiff.

      Thomas C. Hare and O. H. Hewit, for John H. Dillen, Receiver in Bankruptcy, and Bowman S. Duncan, Receiver in the Court of Common Pleas, defendants.

      Smith, Buchanan, Scott & Gordon and J. Foster Meek, for First National Bank of Altoona, Pa., defendant.

      R. A. Henderson, for creditors.
    Nov. 21, 1928.
   Patterson, P. J.,

This is a bill in equity to determine the ownership of certain securities or the proceeds arising from a sale of the same in the hands of the First National Bank of Altoona and for an injunction restraining the said First National Bank from transferring or otherwise disposing of said securities or proceeds pending the final determination of this proceeding. The bill as originally filed on March 26, 1928, was against Calahan and Company, Inc., the First National Bank of Altoona, Inc., and Bowman S. Duncan, receiver of the said Calahan and Company, defendants. Later, on June 4, 1928, John H. Dillen, receiver in bankruptcy of Calahan and Company, Inc., one of the defendants, on. petition and by order of court, was permitted to intervene as a party defendant. The First National Bank of Altoona, by its answer filed April 25, 1928, and amended answer filed July 9, 1928, disclaims any right, title or interest in the securities named or the proceeds arising therefrom, and avers that it is the holder of said property, subject to the decree of the court having jurisdiction of the same. On May 7, 1928, John H. Dillen, receiver in bankruptcy, filed his petition under Rule 29 of the Equity Rules, averring that this court is without jurisdiction to hear and determine this bill and answer. We, therefore, undertake the consideration of but one question, to wit, the jurisdiction of the Court of Common Pleas of Blair County. The bill, upon which the injunction was granted, was presented and acted upon by this court at 5 o’clock on the afternoon of March 26, 1928, and it appears from the evidence that on the same day, at about 9.10 o’clock in the forenoon, a petition in involuntary bankruptcy was filed with the clerk of the United States District Court for the Western District of Pennsylvania to No. 14072.

The property in question has never been, either actually or constructively, in the possession of the bankruptcy court. We note, in this connection, that on March 28, 1928, one Bowman S. Duncan was appointed by the Court of Common Pleas of Blair County receiver and directed to take possession of all of the assets of said Calahan and Company, and that the said receiver was in charge of said estate at the time of the petition in bankruptcy and the granting of the injunction herein complained of. Neither he nor any one for the bankruptcy court, however, ever had possession of the property involved in the present litigation. The First National Bank of Altoona held the same before and at the time of the instituting of the proceedings in the bankruptcy court as well as in this court. This is a plenary suit to recover assets which the plaintiff adversely contends do not belong to the bankrupt estate, and, on the other hand, the receiver contends that said property is a part of the bankrupt estate. Such claims must necessarily be litigated in the court having jurisdiction of the subject-matter and the parties as though bankruptcy proceedings had not been instituted. And, applying this rule, we conclude that the parties and the controversy are properly in the State courts.

“In general, section 23-1? of the Bankruptcy Act of 1898 requires suits by the trustee in the administration of the bankrupt estate to be brought in those courts where they would have been brought if proceedings in bankruptcy had not been instituted. The suits here referred to are plenary suits to recover assets or enforce rights belonging to the estate against persons who claim adversely to the bankrupt in respect to such assets or rights. Bankruptcy courts have no jurisdiction to entertain such suits ‘unless by consent of the proposed defendant:’ ” Collier on Bankruptcy, 1927, page 481.

“The question as to whether a person is an adverse claimant also becomes important in determining the jurisdiction of the court to proceed summarily against him. If the person proceeded against is in any sense an adverse claimant, he is entitled to have the validity of his claim determined by the court in a plenary suit brought for that purpose. ... It is not essential that the person should claim to be the absolute owner of the property in his’ possession to constitute him an adverse claimant:” Collier on Bankruptcy, 1927, page 484.

In the case of Rathman, 183 Fed. Repr. 913, the court said: “The question in this case is whether the controversies between the contestants are controversies at law and in equity between the trustee and an adverse claimant, as distinguished from controversies arising in proceedings in bankruptcy within the meaning of section 23 of the bankrupt law. If they are the former, the bankruptcy court may not, and if they are the latter, it may adjudicate them summarily, without subpoena, summons, pleadings and evidence, according to the principles, rules and practice at law and in equity.”

In the case of Jaquith v. Rowley, 188 U. S. 620, the Supreme Court held that “a surety in whose hands money was deposited to indemnify him for his liability on a bail-bond was an adverse claimant within the meaning of section 23, and could not be proceeded against in the bankruptcy court unless by his consent, as provided for therein. It is not necessary in order to be an adverse claimant that the surety should claim to be the absolute owner of the property in his possession.”

“Where the possession is that of a third person, who asserts no claim to the property, but holds it subject to the claim of the parties interested therein, including the bankrupt, such claims are adverse:” Collier on Bankruptcy, page 487, citing matter of Interocean Transportation Co., 36 Am. Bank Reps. 651.

In the case of First National Bank v. Chicago Title and Trust Co., 198 U. S. 280, the bankrupt had seed in storage writh a warehouseman whose receipts he had pledged; the warehouseman had possession, but no claim on the seeds. It was held that the District Court had no jurisdiction to determine the validity of the pledgee’s claim.

In Bardes v. First National Bank of Hawarden, 178 U. S. Supreme Ct. 524, opinion by Mr. Justice Gray, in construing section 23 of the Act of 1898, it is held (quoting the act) :

“ ‘In the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants.’ This clause, while relating to the circuit courts only and not to the district courts of the United States, indicates the intention of Congress that the ascertainment as between the trustee in bankruptcy and a stranger to the bankruptcy proceedings of the question as to whether certain property claimed by the trustee does or does not form part of the estate to be administered in bankruptcy, shall not be brought within the jurisdiction of the national courts solely because the rights of the bankrupt and of his creditors have been transferred to the trustee in bankruptcy. . . . The second clause positively directs that ‘suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt whose estate is being administered by such trustee might have brought or prosecuted them if proceedings in bankruptcy had not been instituted unless by consent of the proposed defendant.’ Had there been no bankruptcy proceedings, the bankrupt might have brought suit in any state court of competent jurisdiction. . . . On the contrary, Congress, by the second clause of section 23 of the present bankrupt act, appears to this court to have clearly manifested its intention that controversies not strictly or properly .part of the proceedings in bankruptcy, but independent suits brought by the trustee in bankruptcy, to assert a title to money or property as assets of the bankrupt against strangers to those proceedings, should not come within the jurisdiction of the District Court of the United States ‘unless by consent of the proposed defendant,’ of which there is no pretense in this case.
“One object in inserting this clause in the act may well have been to leave such controversies to be tried and determined for the most part in the local courts of the state, to the greater economy and convenience of litigants and witnesses.”

Por the reasons already stated, we are of the opinion that the Court of Common Pleas of Blair County has jurisdiction to hear and determine this case, and, therefore, the rule heretofore awarded to show cause why service should not be set aside and that the preliminary injunction heretofore granted be dissolved for want of jurisdiction is hereby discharged.

From Robert W. Smith, Hollidaysburg, Pa.


author: Reno, P. J.,

text:
    Marlowe & Iwaya Company v. Lehigh Star Bedding Company.

      Orrin E. Boyle, for plaintiff and rule; Groman & Bapoport, for defendant.
    March 11, 1929.
   Reno, P. J.,

Defendant is a corporation, and its president, in its affidavit of defense, avers that he is president, is familiar with the facts of the case, is authorized to make the affidavit, and that the corporation has a just, true and legal defense to the whole of plaintiff’s claim. Contending that, in addition to these averments, the affiant should have averred that the facts set forth in the affidavit were true, the plaintiff seeks a judgment for want of a sufficient affidavit of defense.

This, then, is an objection to the form of the pleading and should have been and must be stated as a rule to strike off the offensive pleading. The sufficiency of an affidavit, if the alleged defect consists in matter of form (that is, its failure to conform to the requirements of the Practice Act of May 14, 1915, P. L. 483), must be tested by a rule to strike off. A rule for judgment for want of a sufficient affidavit of defense “is in effect like a statutory demurrer to a statement of claim. It admits the facts set forth in the affidavit of defense, but denies their sufficiency in law as a defense to the claim. The rule for judgment does not raise any question of defect of form; for such defects are waived by this method, of attack on the substance of the defense:” Amram, “Pennsylvania Practice Act of 1915,” page 214.

This conclusion will not be construed as an approval of the form of the affidavit of defense. It is unskillfully drawn and, upon proper motion, would have been stricken off.

Now, March 11, 1929, rule for judgment for want of a sufficient affidavit of defense is discharged. From Edwin L. Kohler, Allentown, Pa.


author: Martin, P. J.,

text:
    R. Levy & Sons, Inc., v. McCloskey et al.

      Blumberg & Sork, for rule; Duane, Morris & Heckscher, contra.
    May 28, 1929.
   Martin, P. J.,

Plaintiff obtained a judgment against the defendants. Damages were assessed and an attachment execution was issued and served on the garnishee. Interrogatories were filed. The garnishee answered, admitting that it holds as trustee for the defendant, Thomas F. McCIoskey, $390.78 in cash, four shares of Catawissa Railroad Company, first preferred, forty shares of the Fire Association of Philadelphia, eight shares of the Pennsylvania Salt Manufacturing Company and a $3000 certificate of interest in a mortgage secured on premises No. 625 Arch Street under the terms of an irrevocable trust. A copy of the deed is attached to the answers.

By its terms, the defendant, Thomas F. McCIoskey, assigned to the Fidelity Trust Company, the garnishee, the net proceeds to which he became entitled upon settlement of the estate of his grandfather, Thomas Skelly, deceased, to be held by the Fidelity Trust Company in trust to pay the net income to the said Thomas F. McCIoskey during the term of his natural life; and upon his decease to transfer and set over the whole of the principal to “such person or persons as the said Thomas F. McCIoskey may nominate, direct and appoint by his last will and testament; and in default thereof to pay, assign, transfer and set over the principal of the trust estate unto the issue then living of the said Thomas F. McCIoskey in equal shares per stirpes; and should there be then living no issue of the said Thomas F. McCIoskey, then to pay, assign, transfer and set over the entire principal of the said trust estate unto Anna E. Freund, his only surviving sister, or, if she be not then living, to her next of kin.”

The deed provides that the trust shall be irrevocable, and neither the principal nor income assigned or anticipated by any of the beneficiaries or “subject to or liable for the debts, contracts or engagements of said beneficiaries or any of them; but the said trust estate and the income thereof shall be without any liability to execution, attachment, warrant or legal processes of any kind.”

The present rule was entered to show cause why judgment should not be entered against the garnishee for want of a sufficient answer. It is claimed that the answer attempts to avoid payment of the amount admitted by the garnishee to be in its hands by stating that defendant has created a trust in his own favor and yet, at the same time, stating that he might will and bequeath the principal of the trust in any manner he might see fit; that the creation of such a trust cannot protect one against the claims of his creditors.

In Rienzi v. Goodin, 249 Pa. 546, 550, it was said, quoting from the opinion of Mr. Justice Elkin in Nolan v. Nolan, 218 Pa. 135: “As against existing creditors, such a conveyance would be fraudulent, and, in order to make it valid as to subsequent creditors, it must appear that the settlor has divested himself of all rights of ownership in, and control over, the property thus conveyed, reserving only to himself the right to receive the income during life. ... A person sui juris cannot, as against creditors, either prior or subsequent, settle his property in trust for his own use for life and over to his appointees by will, and, in default of such appointment, to the use of his lawful heirs in fee.” Citing Mackason’s Appeal, 42 Pa. 330.

In the present case, Thomas F. McCloskey, the settlor, retained an unrestricted power of appointment enabling him by will to dispose of the entire corpus of the estate and to destroy the interest of all the remaindermen, whether vested or contingent. The trust does not divest him of all rights of ownership in and control over the property conveyed, reserving only to himself the right to receive the income during life.

The case of Fidelity Trust Co. v. New York Finance Co., 125 Fed. Repr. 275, cited by counsel for the garnishee, was decided in 1903 by the Circuit Court of Appeals on appeal from the Circuit Court for the Eastern District of Pennsylvania. In that case, the terms of the trust directed the trustee to pay the net income to the settlor for life, without liability to his debts, and on his death to pay the principal to such persons as he might by will appoint, and in default of appointment, to his issue then living, and if no issue survived him, then to pay and transfer the principal to Mary B. Potter and Blanche Van Hook Potter in equal shares. The trust was irrevocable. The settlor signed a voluntary confession of judgment for an amount equal to the principal of the estate. An attachment execution was issued and served upon the trustee.

It was decided that the corpus of the estate was not subject to attachment for the judgment debt.

The settlor had made a direct effort, in which he was unsuccessful, to revoke the trust, and the court appeared to be impressed that the attachment was collusive and was issued to enable the settlor to obtain the principal of the estate by indirectly revoking the trust. The opinion of Acheson, J., states: “In the present instance, the two specifically named beneficiaries, Marie B. Potter and Blanche Van Hook Potter, have vested interests in the principal of the trust fund; and while it is true that their interests are not presently enjoyable by them, and may be defeated should George Van Hook Potter (the settlor) ‘die leaving issue,’ or should he exercise his reserved power of appointment by will, yet by no act of Potter other than his exercise of that power can the interests of these beneficiaries be divested. . . . Upon the undisputed facts, it seems to us that the New York Finance,, Company must be regarded here as claiming through George Van Hook Potter, and that, as against this garnishee, that company has no higher rights than Potter himself had. The execution attachment, we think, had no greater effect than to place this attaching creditor in the same relation to the garnishee as that occupied by the judgment debtor before the attachment was laid: Baldwin’s Estate, 4 Pa. 248. An attachment execution is authoritatively declared to be an equitable assignment of the thing attached; a substitution of the creditor for the debtor to the latter’s rights against the garnishee: Reed v. Penrose, 36 Pa. 214.”

The court attempted to distinguish the case from Mackason’s Appeal, 42 Pa. 330, by stating that in the latter case “there was no named beneficiary other than the settlor. To all intents and purposes, the settlor continued to be the beneficial owner of the entire estate. It did not appear that there was any reason for the execution of the deed of trust except to protect the settlor’s property from his future engagements. Indeed, the whole design, as found by the court, was to give the settlor the full enjoyment and complete equitable ownership of his property and at the same time protect it from his creditors. Moreover, the deed creating that trust contained no provision against its revocation. And, finally, the contest there arose after the settlor’s death and was between his creditors and his appointee by will. Here we have an active trust which the Supreme Court of Pennsylvania, in a contest between the settlor and the trustee, has sustained and declared to be irrevocable by the settlor and enforceable in favor of the beneficiaries.”

In Nolan v. Nolan, 218 Pa. 135, 139, Mr. Justice Elkin said: “It is against public policy and not consonant with natural justice and fair dealing, as' between debtor and creditor, that a settlor should be permitted to play fast and loose with his property in such a manner as to have the use of the income during life and the right of disposing of the principal by will at any subsequent time he chooses to exercise the power, thus giving him all the substantial benefits arising from the ownership thereof while he has safely put his property beyond the reach of creditors. ... A person sui juris cannot, as against creditors, either prior or subsequent, settle his property in trust for his own use for life and over to his appointees by will, and, in default of such appointment, to the use of his lawful heirs in fee.”

The provision in the deed of trust that Anna E. Freund is to receive the entire remainder if the settlor dies intestate without issue him surviving and makes no appointment by will does not limit the right of the settlor to designate his beneficiaries and prevent Anna E. Freund from enjoying any part of the estate. His right to designate remaindermen is unlimited; and the creation of the trust has not placed the property beyond the reach of his creditors.

And now, to wit, May 28, 1929, judgment is entered in favor of plaintiff and against the garnishee.


author: Alessandroni, J.,

text:
    Commonwealth v. Pflueger.

      James F. McMullan, for John F. Shields, for plaintiff.

      Myles Higgins, for defendant.
    April 18, 1929.
   Alessandroni, J.,

The plaintiff filed a statement of claim, alleging that Anna Pflueger, the defendant’s wife, was admitted to the Norristown State Hospital on Dec. 19,1917, where she has been continuously confined, and that the Commonwealth of Pennsylvania has been obliged to pay for her maintenance. It further alleged that there is still due a balance of $961.15 from the defendant of moneys expended by the plaintiff, which the defendant has not reimbursed. The defendant filed an affidavit of defense raising questions of law, which will be considered in the order raised.

It is first averred that there is no statutory authority for this suit and that the proper procedure is by petition to the court for an order for support of the dependent person. The defendant’s authority for this assertion is section 4 of the Act of June 1, 1915, P. L. 661, which provides that the Court of Common Pleas shall have power to make an order for the payment of the maintenance of any incompetent upon the husband or other person chargeable with the maintenance or in charge of the estate of any inmate. The defendant reasons that this act provides the only and exclusive method whereby the Commonwealth may be reimbursed for the expense of maintaining incompetents.

In the case of Harnish’s Estate, 268 Pa. 128 (1920), the Supreme Court considered the section of the Act of 1915 particularly relied upon by the defendant. The court said: “While section 4 authorizes the Court of Common Pleas to make an adjudication in such case upon the application of the Attorney-General, a study of the entire act negatives the idea that such proceeding is exclusive of all others.” The court in that case decided that the estate of the parent is liable for the maintenance of an incompetent child. The language of the court expressly denies the validity of the defndant’s contention. It is clear that the act in question does not provide the only remedy, and that any action inherent in the Commonwealth still exists.

In the case of In re Margaret McCanna, 77 Pa. Superior Ct. 1, it was held that the liability owed to the Commonwealth by those responsible for incompetents is based upon an implied contract. In the case of Ward’s Estate, 22 Dist. R. 564, it was stated: “A husband is liable for the maintenance of his wife and for the expenses occasioned by her sickness, whether that sickness be insanity or one of the more frequent and less serious forms of disease, for insanity is only a disease affecting the mind as other diseases affect the body. The husband is, therefore, primarily responsible during his life, and after his death his estate is liable for such expenses theretofore incurred. If these expenses have been paid by another, the right to reimbursement accrues in accordance with the familiar doctrine that no one can evade the performance of a duty that is imposed upon him by law, through his unwillingness or temporary inability to fulfill it, and he will, therefore, be bound to indemnify those who appropriately undertake that duty for him. This principle is especially obvious when the custody or maintenance of an insane person is involved, for this is a matter of grave public concern: Woodward on Law of Quasi-Contracts, § 195, et seq., . . .” The theory of implied contract in these cases is so firmly established as to need no further comment.

The remaining questions raised by the affidavit of defense may be considered together. The defendant states that the Commonwealth had previously instituted proceedings in Court of Common Pleas No. 1 for an order on defendant for support, and that said order was made on May 8, 1926, and the petition for past maintenance dismissed. This matter is an averment of new facts, which are set up as a question of law in the defendant’s affidavit of defense raising questions of law. The defendant has misconceived the function of an affidavit of defense raising questions of law, or a demurrer, as it is sometimes termed. “A demurrer admits the facts alleged in the statement, but avers that they are not sufficient to warrant a judgment:” Wilson Bros. v. Fields, Inc., 1 D. & C. 673. Accord, Parrish & Co. v. Bacon, 7 D. & C. 119. As stated in Bovaird v. Barratt & Son, 78 Pa. Superior Ct. 68: “The question of law thus raised is the same kind that could formerly be raised by demurrer and must arise out of the facts introduced by way of defense; in other words, it must not be what was called in common law pleading, a speaking demurrer, that is, one which alleges new matter, in addition to that contained in the narr, as a cause for demurrer. ‘A demurrer is never founded on matter collateral to the pleading which it opposes, but arises on the face of the statement itself:’ Stephen on Pleading, 62.”

It is apparent that the matters set up in the defendant’s demurrer are new facts not alleged in the plaintiff’s statement of claim, and, therefore, not properly pleaded in an affidavit of defense raising questions of law.

And now, to wit, April 18, 1929, the questions of law raised by the affidavit of defense are not sustained and defendant is allowed fifteen days within which to file an affidavit of defense to the merits of the action.


author: Stewart, P. J.,

text:
    Koller’s Estate.

      Russell C. Mauch and Benjamin Neiman, for petitioner.
    Oct. 8, 1928.
   Stewart, P. J.,

This is the petition of Mary Koller, widow of the decedent, and John G. Wasser, executor of his last will and testament, for a declaratory judgment. The decedent left a wife and seven children. All of them were made parties to this proceeding. It appeared that the executor sold decedent’s farm to his widow for $8280. The deed is ready for delivery, but a question having arisen as to the title, we are asked to pass on the right of the executor to make sale, and on the right of the executor to accept the receipt of the widow as payment of the consideration money. The material part of the will is as follows:

“Item. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever, I order and direct to be converted into money as soon as the same can conveniently be done after my decease, and for that purpose I do hereby authorize and empower my said executor, hereinafter named, to sell and dispose of my said real estate, either by Public or Private sale or sales, for the best price or prices that can be gotten for the same, and by proper deed or deeds, conveyance of assurances in the law, to be duly executed, acknowledged and perfected, to grant and convey and assure the same to the purchaser or purchasers thereof, in fee simple, And when the whole of my said residuary estate shall be converted into money as aforesaid, then I will direct that the same shall be paid to my beloved wife, Mary, for her use during her natural life, and after her death, the portion or amount then remaining, is hereby bequeathed in the following manner, viz.:
“Item. To my son Stephen Koller, the sum of Five dollars.
“Item. To my daughter Mary, wife of Earl Reiss, two Per cent. (2%) of the gross amount left for division.
“Item. After the foregoing bequests, and to each of the following sons, Viz.: Younas Roller, Joseph Roller, Rudolph Roller, Victor Roller, and Louis Roller, in five equal shares, share and share alike.
“Item. I nominate and appoint John G. Wasser, Executor of this my Last Will and Testament.”

That the executor can give a title in fee simple to the farm is plain. The testator converted his real estate into personal property and directed his executor to make sale and to give deed to the purchaser. Under those circumstances, the purchaser, if he were an outsider, would take a good title, and there is no difference between an outsider and this widow. If the widow had been made the executrix, the purchaser would get a good title. In Huber v. Hamilton, 211 Pa. 289, the syllabus is: “Testator directed as follows: ‘I give and devise to my beloved wife all the real and personal estate owned by me at my decease; she to dispose of any and all my real and personal estate she wishes to for her own use, so long as she remains my widow; on her decease or marriage, all of what is left to revert back to my legal heirs:’ Held, that the widow took an estate in fee simple.” That case is interesting because the decision was misunderstood, and it took the opinion of Chief Justice Brown, in Huber’s Estate, 249 Pa. 90, to explain just what was decided. In the latter case it was held that the executor of the widow could be compelled to file an account on the petition of one of the heirs mentioned in the will of the testator. On the same subject, see Henninger v. Henninger, 202 Pa. 207; Dickinson’s Estate, 209 Pa. 59; Nieman’s Estate, 229 Pa. 41; Eichman v. Wall, 273 Pa. 236; Grundler et al. v. Chmielinska, 272 Pa. 197; Fassitt v. Seip, 240 Pa. 406, and Allen v. Hirlinger, 219 Pa. 56.

Upon the second matter, it will be perceived that after the whole of testator’s residuary estate shall be converted into money, “the same shall be paid to my beloved wife, Mary, for her use during her natural life.” Testator does not give her the interest on his estate for life, but he gives her the money absolutely with power to consume, and it is only after her death “the portion or amount then remaining” is bequeathed. Where the interest on personal property is given to a party for life, the principal cannot be paid to the legatee without her giving security for the protection of those entitled in remainder, but where she has a right to consume the principal, security is not to be required. In Hambright’s Appeal, 2 Grant, 320, the syllabus is: “A devise by a husband to his wife of $3000 of his estate ‘for her full use during her lifetime,’ and at her death, if any left, ‘I desire it’ to go to other parties, entitles the widow to receive the money without security or condition.” In Green’s Appeal, Satterthwaite’s Appeal, 42 Pa. 25, the syllabus is: “A bequest of a sum of money to one in these words, ‘both principal and interest (if she needs it) during her lifetime, after which to be disposed of in like manner as the residue of my estate’ (i. e., among nephews and nieces of testator), is not within the Act of Feb. 24, 1834, § 49, P. L. 83, prohibiting its payment to the primary legatee without security.” In Hartman’s Estate, 11 Pa. Superior Ct. 35, the syllabus is: “The gift of money for life, without any limitation over, and without the intervention of a trustee, with power to use the corpus, is a bequest absolute.” Those cases were cited with approval in Welsh’s Estate, 239 Pa. 616, and Kirgpatrick’s Estate, 284 Pa. 583. It follows that the widow is entitled to receive the purchase money without giving security to protect the children’s interest.

And now, Oct. 8, 1928, the court orders and declares that John G. Wasser, executor of the- last will and testament of Josef Roller, has power to convey the property of the decedent to the widow in fee simple, and that he has power and authority to pay her the proceeds for the consideration money therefor without requiring security (provided, of course, that all of decedent’s debts and expenses of administration are paid in full); costs of this proceeding to be paid by the petitioners. From Henry D. Maxwell, Easton, Pa.


author: Fleming, P. J.,

text:
    Commonwealth v. Marks.

      John G. Love, District Attorney, for Commonwealth.

      A. C. Dale, for defendant.
    Dec. 28, 1928.
   Fleming, P. J.,

The defendant is charged with a violation of section 1012 (b) of the Motor Vehicle Act of 1927, which provides as follows: “The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of three hundred (300) feet ahead.”

The specific time of the alleged violation is Aug. 19, 1928, and the place Potter Township, this county. It appears that a former charge for the same offense was filed in Mifflin County, alleging that the same occurred on the same date in Armagh Township, Mifflin County. The testimony of the prosecutor, in explanation of this unusual condition, is that he made a mistake in filing the information in Mifflin County. The Mifflin County information is dated Aug. 20, 1928, while that in the instant case was not made until Aug. 31, 1928. In the meanwhile, defendant received and answered a notice from the Mifflin County authorities, going to Lewistown in person, only to be advised that the prosecution then had been withdrawn or words to that effect.

From the testimony adduced, we must accept the story, which is corroborated by a disinterested witness, and find the defendant guilty.

We must, however, register our disapproval of the error in locating the situs of the offense and consider the trouble, annoyance and expense to which the defendant — personally known to us to be a careful, conservative and law-abiding citizen — has been put by the error of the prosecutor, which has been explained only by saying that he confused his arrests for that day. Motorists must be protected from such annoyance, and while it is our duty, under the evidence, to find the defendant guilty, we must in some manner penalize the Commonwealth for its laxity in locating the proper jurisdiction. We, therefore, make the following order:

And now, Dec. 28, 1928, after hearing, the defendant is adjudged guilty of a violation of section 1012 (b) of the Motor Vehicle Act of 1927, and is sentenced to pay the costs of prosecution, a fine of $10, and upon non-payment thereof, to undergo imprisonment in the county jail for a period of five days, the said fine and alternative imprisonment, however, to be remitted upon payment of costs of prosecution.

Prom S. D. Gettig, Bellefonte, Pa.


author: Kent, P. J.,

text:
    Naples v. Hays, Chief of Police, et al.

      Thomas & Kiebort, for plaintiff; Stewart A. Culbertson, for defendants.
    Sept. 10, 1928.
   Kent, P. J.,

This is an action of replevin brought by the plaintiff against the said named defendants to recover possession of a certain Mills Front O. K. Mint Vending Machine, seized and taken from plaintiff’s place of business by the defendants, acting in their respective official capacities, alleging that said machine was a gambling device and prohibited under the laws of the Commonwealth of Pennsylvania, and now comes before the court upon stipulation and agreement of counsel, waiving the right of trial by a jury, the right of appeal and establishing the facts and circumstances involved in this controversy, asking the court to determine the question as to whether said machine can legally be operated according to instructions contained thereon without violating the laws of Pennsylvania relative to gambling devices.

The facts agreed upon in this case as set forth in the stipulation filed are: That the plaintiff, Tony Naples, a resident of the City of Meadville, Crawford County, Pennsylvania, with his place of business situate on Water Street, in said city, on or about April 17, 1928, placed in his said place of business, as lessee, one Mills Front O. K. Mint Vending Machine, fully equipped with mints and checks for its public operation; that on said date John L. Laley, County Detective of Crawford County, and L. M. Hays, Chief of Police of the City of Meadville, Crawford County, acting in their respective official capacities, entered the said plaintiff’s place of business and took into their possession the said Mills Front O. K. Mint Vending Machine, alleging that the same was a gambling device and prohibited under the laws of the Commonwealth. A few days thereafter, the plaintiff filed in this case his prascipe for a writ of replevin for the said named machine, fixing the value thereof, by affidavit attached to the said praecipe, at $150, filing his, plaintiff’s, replevin bond in the sum of $300, as required by law. Whereupon Stewart A. Culbertson, District Attorney of Crawford County, acting voluntarily, appeared for the defendants, waived the issuing of the writ, and accepted service thereof on behalf of the defendants with the same force and effect as though the writ had been regularly issued by the prothonotary and served by the Sheriff of Crawford County; that the correct description and explanation of the operation of the said machine as agreed to is as follows: It is a machine known as the Mills Front O. K. Mint Vending Machine, and has for its purpose the vending of mints. At the top of the machine is a slot or cylinder hole in which a five-eent piece or trade cheek is deposited, which, with the assistance of the person depositing the same, opens the machine to complete the operation, by means of a lever situate on the right-hand side thereof to be pulled forward. When this operation is completed, that is, the depositing of the five-eent piece or trade check in the slot and the operator pulling the lever forward, a package of mints is delivered for the operator at the lower part of the machine. Every person depositing a nickel or trade check in the machine gets a package of mints, and there are no blanks. If the said machine should not contain mints, the nickel or trade check deposited by the operator in the slot is returned to him by the machine, thereby making it impossible for any operator to give up his five-eent piece or trade cheek without receiving in return therefor a package of mints. At the top and in the front of the said machine is a window which is visible to the operator at all times. This machine is so constructed that in this window is shown just what the operator will receive for his five-eent piece’ or trade check deposited therein. If “no” shows in this window, the operator will receive nothing in addition to the package of mints. At times this window shows a number which may vary from 2 to 20, these numbers being visible to the customer at each time before the nickel or trade check is placed in the slot, providing the window does not show the word “no.” The machine is so constructed that in its operation, when a number appears in this window, the next operator of the machine, either the initial operator or some other person who deposits a nickel or trade cheek in the slot of the machine and completes the operation as above described, will receive, in addition to the package of mints, the number of trade checks that is shown in the said window. Thus, if the figure “5” appears in the window, the operator will receive the package of mints and, in addition thereto, five trade checks, the number of trade checks varying from 2 to 20, according to the designated number shown in the window. Thus, the operator may receive, in addition to the package of mints, from 2 to 20 trade checks, which may be used by the operator either in playing the machine, each cheek being good for one turn or operation of the said machine, or redeemable in 5 cents’ worth of merchandise over the counter of the person possessing the said machine. And, further, there is printed on the front of the machine, at the left, the following instructions: “Your nickel buys a package of Jennings Mints, the Nations Quality Mints, and the number of premium coupons shown in this window,” and at the right, “Try a package of Jennings Mints, wrapped clean and vended fresh. Premium coupons should be traded in for merchandise, as merchant will not vend mints for coupons.”

The plaintiff contends that the said machine is not a gambling device the use of which is prohibited under the laws of the Commonwealth of Pennsylvania. The defendants contending that it is a gambling device and cannot legally be operated under the laws of the Commonwealth of Pennsylvania.

From the facts agreed upon the sole question for the court to determine is whether or not the (slot) machine mentioned and described in the stipulation is a gambling device or device of address or hazard under the laws of the State of Pennsylvania, the stipulation also providing that if the court be of the opinion that the machine can be legally operated without violating any law prohibiting gambling devices, then the judgment is to be in favor of the plaintiff and the machine returned to him and the costs incident to the proceedings to be paid by defendants. If the court be of the opinion that the machine is a gambling device and cannot be legally operated according to the instructions on the machine without violating the laws relating to gambling devices, then the decision of the court is to be in favor of the defendants, and they are to retain the machine, subject to the further instructions of the court as to its final disposition, and the plaintiff shall pay the costs necessarily incident to this proceeding.

Section 55 of the Act of March 31, 1860, P. L. 382, as amended by the Act of March 26, 1923, P. L. 32, provides: “If any person shall set up or establish, or cause to be set up or established, either in the open or in any house, room, out-house, tent, booth, arbor or other place whatsoever, any game or device of address, or hazard, with cards, dice, billiard balls, shuffle boards or any other instrument, article or thing whatsoever, heretofore or which hereafter may be invented, used and employed, at which money or other valuable thing may or shall be played for, or staked or abetted upon; or if any person shall procure, permit, suffer and allow persons to collect and assemble in his house, room, out-house, booth, tent, arbor or other place whatsoever, under his control, for the purpose of playing at and staking or betting upon such game or device of address, or hazard, money or other valuable thing; or if any person being the owner, tenant, lessee or occupant of any house, room, out-house, tent, booth, arbor or other place whatsoever, shall lease, hire or rent the same, or any part thereof, to be used and occupied or employed for the purpose of playing at or staking and betting upon such game or device of address, or hazard, for money or other valuable thing, the person so offending in either of the enumerated cases shall be guilty of a misdemeanor.”

Gaming under this act means: The act -of a person who puts up money or other valuable thing upon the chance of the happening of something unknown to the player, through which the player will get money or other valuable thing, or even a chance to get money or other valuable thing for less than it cost.

Prom the agreed description and explanation of the operation of said machine, it clearly appears that the player or operator of the machine described puts up or deposits in the machine money or checks of value, first, for the purpose of getting mints or checks, and, second, upon the chance of the happening of something unknown to the player through which, by an additional payment, he could get more than he paid for; there being no limitation as to the number of times a single operator may play or operate the said machine.

Upon the argument of this case, we were referred to no Pennsylvania cases deciding the questions involved in this matter, but we were referred to decisions of foreign courts deciding that like machines were gambling devices and games of address or hazard as defined and prohibited by the Pennsylvania statute.

In the case of State of Rhode Island v. Certain Gambling Instruments, etc., Rhode Island Supreme Court, 128 Atl. Repr. 12, it is held that:

A mint vending machine so constructed and loaded as to be readily used for gambling purposes by delivering according to chance, which is indicated in advance, checks redeemable in goods, in addition to mint of the value of the deposited coin, and permitted to be so used, may be condemned as a gambling device, notwithstanding a rule to the effect that customers will not be permitted to make consecutive purchases and an agreement by the storekeeper to see that it is not so used. Rathbun, J., in delivering the opinion of the court, says: “This is a proceeding in rem to have a certain nickel in the slot-machine declared forfeited to the state in accordance with the provisions of chapter 410, Gen. Laws, 1923. . . . The owner designates the instrument in question as a mint vending machine. Its operation may be briefly described as follows: By depositing a nickel coin in a slot, pulling a lever and turning a knob, the operator receives from the machine one package of mints, and, if lucky, brass checks varying in number from 2 to 20, redeemable at 5 cents each in trade at the store where the machine is located. For each nickel deposited in the slot the machine delivers to the operator a package of mints to the retail value of 5 cents. In each instance the machine indicates in advance whether or not the operator will, by that particular operation, receive any checks in addition to the package of mints and, if so, how many. It is contended by the owner that the element of chance is eliminated because the operator always knows in advance what he will receive for the nickel he deposits, but the operator knows, also, that after the expenditure of a nickel in operating the machine the indicator may show that a like expenditure of another nickel may bring, in addition to another package of mints, as many as twenty checks. The chance that the second play will give something for nothing is, apparently, a very strong appeal to the gambling instinct, as the owner testified that the machine would sell a thousand times as many mints as could be sold over the counter. On the machine is a printed notice containing a rule to the effect that customers will not be permitted to make consecutive purchases, and in an instrument purporting to be an agreement between the owner and the proprietor of the store from which the machine was taken is a clause whereby said proprietor agrees to “see” that customers do not use the machine for gambling purposes or in violation of the above rule.

“Two persons, by alternate playing, might operate the machine indefinitely without violating said rule. It would be practically impossible for a storekeeper to watch the machine every time it is operated, even if it should be assumed that he would be willing to limit his own profits and those of the owner and honestly desires to prevent consecutive playing by the same person, but we are very strongly of the opinion that the rule is a mere subterfuge, made use of in an attempt to evade the law. However, the question of intent is unimportant, as this is a proceeding, not against the owner but against the machine. The questions are whether the machine is so constructed that it may be used as a gambling instrument and whether it was being so used in the store where the machine was seized. It is clear that the machine was so constructed and loaded with packages of mints and with brass checks that it was capable of being used as a gambling instrument. ... It appearing that the machine was so constructed and loaded as to be readily used for gambling purposes and that it was permitted to be so used, we have no hesitation in finding that said machine is a gambling instrument.”

In our opinion, the machine described in this case and the machine described in the case at bar are identical in construction and means of operation and the reasoning of the court therein very applicable to the case at bar.

It seems to be generally held by the courts of other jurisdictions that “a slot vending machine which, in return for a coin deposited therein, dispenses merchandise of the value of such coin, accompanied at occasional and uncertain intervals by a varying amount of money, trade checks or coupons, is a gambling device:” Allen v. Com., 178 Ky. 250; Com. v. Gritten, 180 Ky. 446; State v. May, 186 N. C. 470; People v. Nahmias, 146 N. Y. Supp. 856; Ferguson v. State of Indiana, 99 N. E. Repr. 806.

In the case of State v. Googin, 117 Me. 102, 102 Atl. Repr. 970, it was held that: A gum vending machine which indicated in advance that, in return for a nickel deposited therein, it would discharge either a five-cent package of gum alone or the gum and a certain number of five-cent trade checks, was a gambling device. The court said: “Respondent says the gum-machine involves no element of chance; that each play of the machine is a completed transaction and shows precisely what the player is to receive and what the machine is to give; that there is no contract, express or implied, that the player shall have a second or third play to avail himself of the opportunity of obtaining the trade checks; that, this being so, there is no element of chance. But the fallacy of this contention is found in the assumption that the machine deals with the individual, whereas, by its method of operation, of necessity, it deals with the public. It is an automatic device, the operation of which is planned in every detail before it is put in use. It is then placed in public places to be automatically worked. It is the dumb agent of its owner, inviting the public to operate it as often and as many times as any one of the public may please. We find no limitation upon the right of the same person to operate over and over again. It is undoubtedly this unlimited right that allures the patronage that makes the operation of the machine profitable. If the player does not win the first time, he knows he can repeat till he does win. It is, therefore, quite apparent that it is the prize, and not the gum, that invites the public. Accordingly, while each play is a completed act, it may be only preliminary to the future play by the same person which will bring forth the coveted prize, the chance in this operation being not in the visible play, which may show only a package of gum, but in the invisible play by which the machine may turn up a visible prize to be captured on the next play. If a play turns up no premium, neither party loses. If it does turn up a premium, then the machine loses on that particular play. But it is said there is no loss to the machine in the end and consequently no chance because the machine has calculated the profits and losses beforehand and set apart a certain part of the profits to be allowed its customers. True, but not to all customers alike. Some get something; some get nothing; some more; some less. In this lies the test of what this device means, and the theory upon which it is conceived and worked, namely, to induce customers to play the machine with the expectation of getting something for nothing, it matters not what customer is successful, as it is perfectly obvious that one part of the public pays in money for what another part of the public gets in prizes. In other words, this machine is a device designed to play one part of the public against another part of the public for the purpose of inducing the whole public to take the chance of gain, which in the end results in producing to its owner the predetermined profits. It is also claimed that this device is in the nature of a profit-sharing enterprise or similar in its purpose to the practice of department stores in offering premiums to the departments showing the largest increase of profits. But a department store does not take profits from one part of its customers or employees with which to pay premiums to another part. No one set of customers is predestined to pay an extra price for the purpose of contributing funds for the payment of awards. But the owner of this machine, in advance, takes money of one part of the public and gives it to another part whose winnings depend upon the chance, arranged in advance, of just when and just how much a certain play of the machine will produce to the player who is lucky enough to approach it at the moment of the predestined play. If he then draws twenty checks valued at 5 cents each, he wins, in addition to his gum, $1. Another may win ten checks, another five; an inequality of value probably running through the whole list of prizes. This transaction cannot be regarded as a ‘profit-sharing’ enterprise, as we understand the phrase, nor a legitimate distribution of premiums for services rendered, as in the case of department stores.”

Upon the argument of the case at bar, attorney for the plaintiff strenuously contended that each play of the machine was a complete transaction, but very frankly admitted that a continuous playing of the machine would, in all probability, be considered gaming. In this case, as in the case just quoted, there is no limitation upon the right of the same person to operate over and over again the machine, and thereby eventually bringing forth, the coveted prize to be captured on the next play.

In the case of Pure Mint Co. v. Labarre, N. J. Eq., 125 Atl. 105, it is said: After pointing out that the element of chance entered into the transaction with regard to the number of checks which the machine, after the completion of the first operation, would offer for the next, the court said: “Complainant argues that the machine must needs be considered solely from the standpoint of a single separate operation, and that no customer has any right to a second operation, or to continue to operate it. It may well be that the customer has no such definite, technical, legal right; doubtless, as a matter of law, the shopkeeper would have a lawful right to refuse to permit a customer to operate the machine a second time in succession, just as he might lawfully refuse to sell a loaf of bread or a cigar to an intending purchaser. But it is not pretended that any shopkeeper having one of these machines ever has refused to permit a second successive operation, or is ever likely to so do. The machine itself bears no announcement of any such limitation; and the only reason which can be conceived for the devising and manufacture of gueh a machine is that the lure of the chance of gains on a second operation will induce, or help to induce, the first operation. . . . Suppose a customer of one of the machines in question having once operated the machine, receiving only the package of mint and no premium checks, sees that if he operates it again he will get five or ten premium cheeks. No shopkeeper, unless intent on commercial suicide, would conceivably refuse to permit him to operate it a second time; and any bystander who attempted to displace the first customer would inevitably bring on a breach of the peace. It is also argued that the machine is not a gambling device, because there is no possibility of loss to the customer; because for each nickel deposited he invariably receives his five-cent package of mints whether he receives any premium cheeks or not. This contention is not sound. The statute makes no such differentiation. It is just as much a playing for valuable things (premium checks) whether the candy is delivered or not; the difference is in degree, but not in kind.”

In the case of State v. McTeer, 129 Tenn. 535, and 167 S. W. Repr. 121, the court said: “It is insisted that the indicator always shows what the player is to get before he deposits his nickel; hence, it is said there is no element of uncertainty and no opportunity of obtaining disproportionate gains or sustaining loss by the hazard of anything of value. It is true there is no hazard of loss, if we assume, as we think we should, that each package of gum is of the fair commercial equivalent of 5 cents; but there is the prospect of obtaining very greatly disproportionate gains. The indicator may show a package of gum when the player deposits his nickel, and this he will get when he works the lever, but at the same time the indicator may present for the next play either one of the numbers representing checks of the value of 5 cents each. If, for example, the number shown is 20, the player, by depositing 5 cents, will obtain twenty checks worth $1. So for the other numbers. The lure is the opportunity of winning from 10 to 100 cents by the deposit and expenditure of 5 cents. There must be at least one play before any of the numbers mentioned is shown on the indicator, and there may be many, and it is not known which number will appear, nor at what time, nor after how many plays. In case the checks are shown on the indicator, the owner of the machine stands to lose on that play the difference between 5 cents and the denomination of the check which the machine may show; that is, a loss of from 5 cents to 95 cents. However, there is always a chance that any single player, by the expenditure of 10 cents, through making two plays of 5 cents each, may obtain not only a package of gum worth 5 cents, but checks worth from 10 to 100 cents, and so in proportion for many plays and a corresponding loss to the owner of the machine on such individual deals. The player is induced to continue by the fact that he is getting 5 cents’ worth of gum for each play, with always the chance just ahead that the next presentation of the indicator will give him the opportunity of making a profit of from 100 to many times that per cent. We think this shows the machine is a gambling device. It is not essential that there should be the chance of loss to the players, as well as of extraordinary or greatly disproportionate gain.”

It has been held in a great number of other jurisdictions that mint or gum vending machines, commonly known as slot-machines, identical with or very similar to the machine involved in this case, are gambling devices. We have been unable to find any decision of the appellate courts of this State upon the question submitted for our determination, but we do find one case reported, that of Com. v. Jones and Nicely, 15 Pa. Justices’ Law Repr. 1, from the Court of Quarter Sessions of Lycoming County, in which Whitehead, P. J., in his opinion, says:

“For many years governments, both national and municipal, have recognized the great danger, especially to the young, of gambling, every game, sport or pastime in which chance for gain is the controlling element, and statutes, acts and ordinances have been enacted to suppress the same. All games in which there is a chance or possibility of getting much for little seems to have such a seductive influence that to those who indulge in playing them much injury results.
“It is well known that this social evil, if allowed to go unrestricted, would result in the impoverishment of many and lead to the commission of crimes, and to prevent such a condition is the object and purpose of these statutes relating to gambling. Since the enactment of these statutes, many crafty and ingenious persons have endeavored, through ingenious games, devices and instruments, to accomplish the same results as have been condemned, but in such a way as to keep within the law.
“The machine used by the defendants in the case are unquestionably ingeniously arranged so as to attract the young and sometimes the old, because of the possibility of getting more than is shown upon the face of the machine. Keeping in mind the fact that the indicator points to what one will get, and that one is sure to get the thing indicated, and also keeping in mind that when one drops the nickel in to get the gum or check indicated by the indicator, that the indicator immediately changes and points to the same or something else, and that this gives one the opportunity, upon depositing another nickel or check, to get from one to twenty checks, each worth 5 cents in merchandise, are we not irresistibly led to the conclusion that the player is operating for two purposes, viz.: First, to get the thing indicated; and, second, the opportunity to get very much more than the thing indicated, namely, twenty checks.”

The chief element of gambling is the chance or uncertainty of the hazard. It is not essential that one of the parties to the wager stands to lose. The chance taken by the player may be in winning on the operation of the machine, or in the amount to be won or lost, and the transaction should be denounced as gambling whenever the player hazards his money on the chance that he may receive in return money or property of greater value than that he hazards. If he is offered the uncertain chance of getting something for nothing, the offer is a wager, since the operator offers to bet that the player will lose, and in accepting the chance the player bets that he will win. Such offer, therefore, is a direct appeal to the gambling instinct, which, it is said, possesses every man in some degree, and it is the temptation to gratify the instinct that all penal laws aimed at gambling are designed to suppress.

One cannot imagine that a player would stop when the indicator pointed at trade checks, at a certainty of gain. Consequently, the inventor of this machine knew that when each new player began, the indicator invariably would point to mints only, and he also knew that in the vast majority of instances the dealings between the player and the machine would consist of more than a single play.

Wherefore, we believe and hold as unsound the view and argument of the plaintiff that each play constituted a separate and distinct transaction in the sense of ending the relation of the player to the machine. In our opinion, this machine is so constructed that in its operation it will allure the player into continuing to play in the hope that at the next turn of the machine the indicator would indicate that he would receive, in addition to the package of mints, trade checks, varying in number from 2 to 20, of the value of 5 cents each, and thus bring him something for nothing.

Applying the reasoning of the above-quoted cases, and considering the construction and operation of the machine in the case at bar, we are convinced that the machine in question is a gambling device, and that the setting up and operating of same would be in violation of the laws of this Commonwealth.

Wherefore, now, Sept. 10, 1928, in accordance with the agreement of counsel, judgment is hereby entered in favor of the defendants, and it is ordered that said named officers, the defendants, destroy that certain Mills Front O. K. Mint Vending Machine, taken from the premises of the said plaintiff on April 17, 1928, and it is further ordered that the plaintiff, Tony Naples, pay the costs of this proceeding.

Prom J. Perry Eckels, Meadville, Pa.


author: Hoück, J.,

text:
    Brobst v. Davis.

      J. W. Moyer, for plaintiff; Edgar Downey, for defendant.
    Feb. 18, 1929.
   Hoück, J.,

This is an action to recover damages for breaking in and entering upon a lot in Nuremberg, North Union Township, and for breaking down the fences, destroying fruit trees and excavating on said lot. The lot is described in the statement of claim and the plaintiff alleges that it became his property by deed dated April 30, 1901. Attached to the statement of claim is an abstract of title showing the deed to the plaintiff dated April 30, 1901; secondly, a deed from plaintiff and his wife to Oscar Brobst; and, thirdly, an allegation that the last-named deed was a voluntary deed, “executed and delivered by myself and wife,' to our son, Oscar Brobst, the grantee therein, for our own convenience, purposes and protection, and without any consideration of any kind whatever paid therefor by him, the said grantee, nor any one for him, and no possession whatever of said premises was ever delivered to or claimed or held by him, but, on the contrary, the full, exclusive, continuous, open, notorious, hostile and adverse possession thereof was kept and held by me, and cultivated and taxes paid by me, without any question or claim thereto by him.” The statement further alleges that the plaintiff took possession of said lot immediately upon the execution and delivery of the deed of April 30, 1901, and remained in possession without disturbance until the middle of March, 1928; that defendant, and those under whom he claims, have made and are making fraudulent use of the deed from plaintiff and wife to his son, Oscar Brobst, for the purpose of cheating and defrauding plaintiff out of his title to' said lot; and that in the middle of March, 1928, the defendant, “not being ignorant of the facts,” broke into and entered upon said lot without the consent and against the protest and objection of the plaintiff.

To this statement of claim defendant filed an affidavit of defense raising questions of law. The affidavit alleges that the statement on its face shows that plaintiff has no title to the lot in question and that the facts alleged in the statement show that plaintiff cannot maintain an action of trespass against the defendant.

On the first question, it is defendant’s contention that the abstract of title shows no reconveyance from Oscar Brobst to plaintiff; that plaintiff attempts to set up title against his son, Oscar Brobst, by adverse possession, whereas (McMinn v. Cummings, 56 Pa. Superior Ct. 77), plaintiff is regarded as trustee for his grantee and could not hold adversely to him ,* that plaintiff cannot establish title by adverse possession since twenty-one years did not elapse from the date of the deed to Oscar Brobst, July 12, 1907, to the time plaintiff was dispossessed, about the middle of March, 1928; and that it must be inferred that plaintiff conveyed to his son for the purpose of removing his property from the reach of creditors, so that he participated in the fraud and cannot now (Paul v. Paul, 266 Pa. 241) set up the fraud to defeat his deed. On the second question, the defendant contends that the statement does not show that plaintiff had possession of the lot when defendant entered, and that if he had possession, it was by virtue of the sufferance of the real owner, the defendant, which sufferance was revoked by defendant’s entry: Kellam v. Janson, 17 Pa. 467.

The weakness of defendant’s position is that his contentions are based upon facts which do not appear from the pleadings. This is an action of trespass quare clausum fregit, and, while the form of the action is governed by the Practice Act of 1915, the necessary fundamentals to sustain the action required at common law are still essential: Griffin et al. v. Delaware & Hudson Co., 257 Pa. 432. Hence, plaintiff must show not' only title or ownership of the land, but also possession, or the right to immediate possession, at the time of the trespass: Vanderslice v. Donner, 26 Pa. Superior Ct. 319; Hartley v. Spencer, 75 Pa. Superior Ct. 449; Kossell v. Rhoades, 272 Pa. 75.

The plaintiff alleges in his statement that he has been the owner of the lot continuously since April 30, 1901, and that he was in undisturbed possession from that date to and at the time of defendant’s entry. Therefore, the statement alleges that plaintiff had both title and possession at the time of the trespass. He claims that the deed from him and his wife to Oscar Brobst is a nullity by reason of fraud, and that defendant, with knowledge of the facts, is making fraudulent use of that deed. The plaintiff does not rest his title on adverse possession. He relies upon his uninterrupted possession, which continued after the delivery of the deed to Oscar Brobst, as constructive notice to all purchasers of his claim of title: Jacques v. Weeks, 7 Watts, 261; Hood v. Fahnestock, 1 Pa. 470. Nor can it be determined from the statement of claim that plaintiff conveyed to Oscar Brobst for the purpose of defrauding creditors, so as to make him a party to the fraud and to prevent him from impeaching the deed to his son.

The statement of claim does not state on what right defendant bases his claim to title and possession. Therefore, it is quite obvious that we cannot tell whether or not defendant is the real owner, whether plaintiff was in possession at defendant’s sufferance, or whether defendant’s entry revoked the sufferance.

The statement of claim alleges title and possession in plaintiff at the time of defendant’s entry. This is sufficient to sustain an action of trespass qwa/re clcmsum fregit. The real facts can be ascertained only from the proof produced. It follows that the statement of claim is sufficient and that the affidavit of defense raising questions of law must be overruled.

The affidavit of defense raising questions of law is overruled and the defendant is allowed fifteen days from this date in which to file an affidavit of defense on the merits, failing in which the case shall be deemed to be at issue.

Prom M. M. Burke, Shenandoah, Pa.


author: Iobst, J.,

text:
    Hartman’s Estate.

      Dewatt & Heydt, for exceptant; Butz, Rwpp <fe Welty, for estate.
    Dec. 3, 1928.
   Iobst, J.,

Before the auditor, one Anna Loux presented her claim for $2000. The auditor found against her, and an exception to this finding is now before us. The claim is based entirely upon a written instrument which reads as follows:

“Allentown, Pa., May 30, 1927.
“Statement of Mr. F. S. Hartman.
“In the presence of Dr. G. H. Boyer, and myself as his Power of Attorney, Mr. F. S. Hartman, who is of sound' mind, has voluntarily declared, that in his last will which is deposited in a Lock Box, in the Second National Bank, Allentown, Pa., He previously willed One Thousand ($1000.00) Dollars, to Miss Anna Loux. He however now feels, of his own free will, that said Miss Anna Loux, on account of additional services during her period of employment, is entitled to Two Thousand ($2000.00) Dollars additional, to be given her at once, in Bonds which are deposited in his Lock Box, in the Second National Bank, Allentown, Pa., or in an equivalent amount in money.
his
“(Sgd) Francis S. (x) Hartman [Seal]
mark
“Attest (Sgd) G. H. Boyer.
“Attest (Sgd) Cyrus J. Dilcher.
“Power of Attorney.”

This paper was never probated, and counsel for claimant is not contending that it is of testamentary character. The instrument provides that the bonds, or their equivalent in money, should “be given her at once,” denoting that this should be done in the lifetime of Francis S. Hartman and not after his death. Francis S. Hartman died on June 4, 1927, testate. In his will, dated Aug. 8, 1922, he makes a bequest to Anna Loux as follows: “My cousin, Anna Loux, after the death of my wife, was engaged as my housekeeper, at such compensation as was mutually agreed and paid to her monthly, dating from June 23, 1919, and if she remains in my services without interruption until my death, I give, devise and bequeath unto her the sum of One Thousand ($1000.00) Dollars, but in the event, that for any reason whatsoever she leaves my employment before my demise, the above bequest of One Thousand ($1000.00) Dollars is revoked, and instead give and bequeath unto her the sum of One Hundred ($100) Dollars for each and every year she may be in my service at the time of my death, until such yearly sum shall reach the sum of Five Hundred ($500) Dollars which shall be the maximum sum she shall receive for her services.” No evidence was produced before the auditor that the claimant was not paid for any and all services rendered by her to the decedent in his lifetime, nor that the paper upon which claim is now made was ever delivered to, or in the possession of, the claimant before the death of the testator, nor that she has any knowledge with reference thereto. There is, therefore, no evidence upon the record of any contractual relations between Anna Loux and the decedent other than that of the engagement by him of her as his housekeeper, and for the services so rendered the law presumes payment. The instrument before us was signed four days prior to Mr. Hartman’s death. It was drawn at his request, and when executed was delivered to one Cyrus J. Dilcher, a witness thereon, and who acted as attomey-in-faet in the transaction of decedent’s business for several months prior to his death. Mr. Dilcher testified that the paper was drawn up so as to secure the lock-box from the bank “for Mr. Hartman and have him take out the bonds himself.” When Dilcher arrived at the banking house, the officials of that institution refused delivery of the lock-box to him, whereupon he returned the paper writing and says, “as much as I remember, I put it with Mr. Hartman’s papers,” where it evidently was found after the death of the testator. No other effort was made to get any bonds out of the lock-box between that day and the day of the death of the testator. True, the instrument is under seal and, therefore, imports a consideration, but before any liability attaches to the maker of a sealed instrument to the person designated as a payee therein or as beneficiary thereunder, there must be a delivery thereof, either to the person named therein or to some one for him or held by the maker as trustee for such person. Dilcher was the attorney-in-fact for the deceased and not the agent for Miss Loux. His directions were to secure the lock-box in order that the deceased might remove the bonds. Failure to secure the box made it impossible for Hartman to secure the bonds; so that there was neither a delivery of the instrument nor a delivery of the bonds or their equivalent in money. It seems to us that the question here presented for our consideration narrows down to this — does the paper writing provide for a gift inter vivos or a donatio mortis causa? In Walsh’s Appeal, 122 Pa. 177, 186, Mr. Justice Williams says: “A gift is more than a purpose to give, however clear and well settled the purpose may be. It is a purpose executed. It may be defined as the voluntary transfer of a chattel completed by the delivery of possession. It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and therefore irrevocable contract. All gifts are necessarily inter vivos, for a living donor and donee are indispensable to a valid donation; but when the gift is prompted by the belief of the donor that his death is impending, and is made as a provision for the donee, if death ensues, it is distinguished from the ordinary gift inter vivos and called donatio mortis causa. But by whatever name called, the elements necessary to a complete gift are not changed. There must be a purpose to give; this purpose must be expressed in words or signs; and it must be executed by the actual delivery of the thing given to the donee or some one for his use. In every valid gift, a present title must vest in the donee, irrevocable in the ordinary case of a gift inter vivos, revocable only upon the recovery of the donor in gifts mortis causa: Wells v. Tucker, 3 Binney, 365; Nicholas v. Adams, 2 Wh. 17; 6 Bacon Ab., 162. The thing given must be susceptible of delivery. In the case of money on deposit or loaned out, the certificate of deposit or the bill, note or bond may be delivered properly endorsed, and it will confer on the donee an absolute title to the fund represented by it. But if there remains something for the donor to do before the title of his donee is complete, the donor may decline the further performance and resume his own. This is true of both classes of gifts, and there can be no good reason for distinguishing between them in this particular: Scott v. Lauman, 104 Pa. 593. As to gifts inter vivos, it was distinctly held in Bond v. Bunting, 78 Pa. 210, that an assignment or some equivalent instrument was necessary in order to pass title to a chose in action. The reason is that a gift is incomplete which does not clothe the donee with the rights and powers of ownership, and these rights and powers do not vest without a complete delivery: Michener v. Dale, 23 Pa. 59; Fross’s Appeal, 105 Pa. 258.” See, also, Hawn v. Stoler, 208 Pa. 610; Cooper’s Estate, 263 Pa. 37; Kaufmann’s Estate, 281 Pa. 519; Yeager’s Estate, 273 Pa. 359; Oldfield’s Estate, 72 Pa. Superior Ct. 340; Clapper v. Frederick, 199 Pa. 609; McHale, Admin’x, v. Toole et al., 258 Pa. 293.

The paper writing does not measure up to that which is necessary under the law to create a gift.

The remaining question is, did the paper writing clearly indicate that Hartman held the bonds or their equivalent in money in trust for the donee? We cannot so hold. Referring to Eshbach’s Estate, 197 Pa. 153, 157, we find the law as follows: “Three things, it has been said, must concur to raise a trust, sufficient words to create it, a definite subject, and a certain or ascertained object; and to these requisites may be added another, viz., that the terms of the trust should be sufficiently declared:” Bispham’s Equity, 109. Mr. Bispham further says (page 115): “When a settlor is possessed of'the legal title to the subject-matter of the settlement, he may create a valid trust thereof, either by a declaration that he holds the property in trust or by a transfer of the legal title to the property to a third party upon certain trusts. In other words, he may constitute either himself or another person the trustee. If he makes himself trustee, no transfer of the subject-matter is necessary.” In Smith’s Estate, 144 Pa. 436, Mr. Justice Clark, speaking for the court, says: “If the declaration (of a trust) be in writing, it is not essential, as a general rule, that it should be in any particular form. It may be couched in any language which is sufficiently expressive of the intention to create a trust.”

The instrument before us indicates that the bonds should be delivered in his lifetime, and nowhere states that the decedent was holding them for the claimant, to be delivered after his death. We come to the conclusion that there was no delivery, either of the paper writing or the bonds or their equivalent in money therein referred to, and, therefore, no valid gift of them or it to the claimant, and that there was no trust created by the decedent in favor of her. Possession of the bonds or the equivalent in money was not parted with. The decedent’s intention to have them delivered might have been abandoned and his directions countermanded. They were his property while he lived, and as the direction was not a testamentary one, it became inoperative at his death. It was a mere desire and direction for an act to be performed in his lifetime, which expires with him: Campbell’s Estate, 7 Pa. 100, 102. The exceptions to the auditor’s report must, therefore, be dismissed.

Deeree of court.

Now, Dec. 3, 1928, the exceptions to the auditor’s report in the above-entitled estate, filed as of Sept. 21,1928, are dismissed, at the cost of the exceptant. The findings and conclusions of the auditor are confirmed.

Prom Edwin L. Kohler, Allentown, Pa.


author: Williams, P. J.,

text:
    Tremont v. Tremont.

      Henry 1. Fox, for libellant.
    Nov. 22, 1928.
   Williams, P. J.,

In the supplemental report of the master he concludes as a matter of law that, “inasmuch as the libellant was not a resident of the State of Pennsylvania for one year immediately preceding the filing of the libel in this case, this court has no jurisdiction in this suit in divorce,” whereupon he recommends that “the libel be dismissed for lack of jurisdiction.”

The legal conclusion of the master may not be warranted by the facts. The complete evidence bearing on the residence of the libellant within this Commonwealth for a year before the presentation of her petition in divorce follows:

“In August of 1925 he fooled me, telling me that he was going to take me to Philadelphia, but he took me to Paterson, N. J., and when I reached there, I found him living with this Beatrice Volpe in the same house. He beat me and told me that woman had to be in the same house, that I must consent to do' as she said. I told him that I could not stand it, and he said to do so or get out. He wanted me to allow Beatrice Volpe to sleep in the same bed with him and myself. At that time I was with child. He compelled me to remain in the room while he was actually having intercourse with Beatrice Volpe. I tried to get away from the place, but I had no money or any means to get away. My husband told me I had to stay there and submit to his living in that condition, or else get out. Finally, he gave me some money, and as soon as I got it, I took my four children and came back to Norristown, where my folks lived. When I left Paterson he was still living with Beatrice Volpe. She was arrested a number of times in Norristown for larceny. She had her daughter working in Paterson. My husband was not working then. So far as I know, Beatrice Volpe is still with my husband.
“When we went to live on Sandy Street, we purchased a property there and paid down about $400 or $500. My husband induced me to sign the deed for this property, telling me that he needed the money and that he was going to do better, wherever we would go; that we were to go to Philadelphia. It was because I thought he was going away from Betrice Volpe that I signed the deed. When he took me away, and I thought he was taking me to Philadelphia, he took me to Paterson instead, and when I got there, I found this Beatrice Volpe already installed in the house.
“I was in Paterson, N. J., for five weeks, in fear and terror all the time, and would have gotten away from there at once if I had had the money or known how to get home. When my husband finally gave me the money, he told me to get out.
“I am Mary Tremont, the libellant in this proceeding. I was a resident of the Borough of Norristown and have been a resident of the Borough of Norristown nearly all my life. In August of 1925, I left the Borough of Norris-town with my husband, Vincent Tremont. At the time we broke up our home in Norristown, I was going from Norristown with my husband, and had the intention of making a new home. I thought we were going to Philadelphia, as my husband said he was going there. We got on the train, and instead of going to Philadelphia he took me to Paterson, New Jersey. As I have originally testified, when I got to Paterson, New Jersey, I remained there for about five weeks. The only reason I remained there was because I could not get away. I had no money. I was willing to go with my husband if he had done what was right, and while I did not know that I was going to Paterson, I would have been willing to have gone there and resided with him, if he would support me and do what was right. I would have gone any place for my children’s sake. I came back on Labor Day, September 7, 1925.”

The Act of March 13, 1815, !§ 11, P. L. 150-154, says that “no person shall be entitled to a divorce . . . who is not a citizen of this State, and who shall not have resided therein at least one whole year previous to the filing of his or her petition or libel.”

The general interpretation of the word “resided,” as used in the above statute, is the having had a residence acquired with domiciliary intent.

“Residence is, indeed, made up of fact and intention; that is, of abode with intention of remaining:” Pfoutz v. Comford, 36 Pa. 420 (1860), Lowrie, C. J., page 422.

Fact and intention must concur: Reed’s Appeal, 71 Pa. 378, (1872), Sharwood, J., page 383.

In the instant case, it is clear that, until midsummer of 1925, the libellant was a resident of Pennsylvania within the meaning of the foregoing act of assembly. The master raises, however, the question of her bona fide residence in this State on account of her sojourn in Paterson, New Jersey, for a period of about five weeks in August and early September that year. If the libellant became domiciled permanently in New Jersey at any time during such sojourn, the master is correct in concluding this court is without jurisdiction. Unfortunately, he has found the libellant lost her Pennsylvania residence with domiciliary intent, and is, therefore, unable to meet the condition precedent to her divorce suit of residence here for one year prior to the exhibition of her libel.

The testimony shows that while the libellant and respondent were living in the Borough of Norristown, this county, the wife was treated in a brutal and revolting fashion by a husband infatuated with a certain female named Beatrice Volpe. At that time, the libellant and respondent resided on Sandy Street in a home standing in their joint names. The respondent was desirous of selling the family dwelling. By the simple ruse of telling the libellant that upon the sale of the real estate he would move to the nearby City of Philadelphia, this State, the husband induced the wife to sign the deed conveying away their home. Of course, this was easy for the respondent to accomplish, because the libellant wished to break up the relationship between her husband and Beatrice Volpe. So the wife consented to join in the conveyance but with the sole thought of moving to Philadelphia. When the libellant and respondent and their children removed from Norristown, so far as the libellant was concerned, she intended to continue to make her home in Pennsylvania. In other words, if, at this point, there was an intention on the part of the libellant to abandon her Norristown dwelling, such intention was for the single purpose of acquiring a Philadelphia domicile. Reed’s Appeal, swpra, holds that a domicile once acquired remains until actual acquisition of a new domicile. Therefore, when the libellant left Norristown intending to acquire a new domicile in Philadelphia, she retained her domicile in Norris-town until such time as she took up abode elsewhere with intention of remaining in the new abode.

Instead, however, of escorting the members of his family to the “City of Brotherly Love,” the respondent took them to Paterson, New Jersey. The intention of the respondent so to do was unknown to the libellant when she departed from Norristown. Upon arrival at Paterson, the husband and father installed his wife and family in a house already occupied by Beatrice Volpe. Thus the libellant found waiting for her in the new home the very woman the wife wanted her husband to forsake. Surely, it ought to be concluded with safety that once the jealous gaze of the libellant had fallen upon the form of her husband’s mistress ensconced in the new dwelling, the wife formed no intention of making a permanent domicile beneath the roof covering the head of Beatrice Volpe. As already noted, under the authority last mentioned, the libellant continued to retain her Pennsylvania domicile until she took up a fresh abode with the intention of staying permanently in such abode.

From the moment the triumphant leer of Beatrice Volpe greeted the libellant on the threshold of the Paterson home, the latter wished to return immediately to Norristown, and only because of lack of funds was she unable to gratify her desire. It must be apparent that, under the circumstances, during the relatively short time the libellant remained in New Jersey, the essential elements of foreign domicile never attached to her. While her physical presence in Paterson is not to be disputed, it is equally clear she never meant to dwell there permanently under the existing conditions. Hence, her sojourn in New Jersey was, at most, but a temporary absence from the domicile of the libellant in Pennsylvania. There is a cloud of authority for the proposition that mere temporary absence beyond the borders of the Commonwealth — when bona fide residence within the State remains unchanged— will not defeat the right to divorce.

It is true that, as a general rule, the domicile of the wife follows the domicile of the husband. On the facts of the present case, it may be conceded the respondent established his domicile in New Jersey, for he sold and removed from his home in Pennsylvania and established an abode in Paterson with intention of staying there indefinitely. The inquiry presented is, then, whether by operation of general rule the libellant acquired an extraterritorial domicile.

If the conduct of the husband entitled the wife to have their marriage dissolved, her right to establish a domicile apart and separate from that of her husband is well recognized: Reed v. Reed, 30 Pa. Superior Ct. 229, 236 (1906), Orlady, J. In the case at bar, only force of circumstances kept the libellant in Paterson. If the operation of the broad principle that the domicile of the wife follows that of her husband should draw the libellant within the folds of the jurisdiction of New Jersey, a gross injustice would be done her. By deceit alone did her husband persuade and induce her to accompany him to a foreign jurisdiction, in which, so soon as the real confronting situation had been revealed, she resolved immediately to leave and from which, so soon as reasonable opportunity had been afforded, she returned to her home in Norristown. The unity of person created by marriage is a legal fiction to be followed for all useful and just purposes, but not to be pursued in a proceeding by nature making husband and wife opposite parties to the extent of the destruction of the rights of the wife, contrary to the principles of natural justice: Colvin v. Reed, 55 Pa. 375, 379 (1867), Agnew, J.

The case of the libellant is most meritorious. The evidence proves beyond peradventure of doubt, cruel and barbarous treatment endangering her life and indignities to her person, rendering life burdensome and condition intolerable. This court has jurisdiction and the master could have so found. A formal decree of divorce will be entered separately.

From Aaron S. Swartz, Jr., Norristown, Pa.


author: Hildebrand, P. J.,

text:
    Commonwealth v. Klee.

      J. Elder Bryan, District Attorney, for Commonwealth.

      C. H. Akens and T. W. Dickey, for defendant.
    Feb. 14, 1929.
   Hildebrand, P. J.,

The indictment against the defendant contains two counts, one charging the unlawful possession of intoxicating liquors and the other the unlawful selling of intoxicating liquors. Having been found guilty as indicted, she has presented a motion for a new trial and a motion for her “discharge non obstante veredicto.”

A motion to quash the indictment in the case was made, it being averred that the indictment was returned a true bill on Dec. 4,1928, although less than twelve members of the grand jury had voted in favor of so returning it; that the bill was again referred to the grand jury on Dec. 5, 1928, whereupon the name of another witness was endorsed upon the bill, his testimony received and the bill was again returned a true bill on Dec. 5, 1928.

On hearing granted upon the motion to quash, it appeared by testimony of the foreman of the grand jury, taken under objection, that when the bill was first before the grand jury ten grand jurors voted for a true bill, whereupon it was returned a true bill, the grand jury at the time being under the impression that a bill could be so returned upon majority vote of the grand jury. The question of the propriety of this return having been raised in the grand jury, the grand jury came into open court on the following day, and before the conclusion of their work, and asked that the bill be resubmitted to them for further consideration, whereupon the court ordered the bill resubmitted. It appears by the testimony offered that the name of William G. Fleming, county detective, was then added to the bill by the district attorney, and this witness appeared and testified before the grand jury. The foreman testified that the final vote was fifteen for a true bill and two for not a true bill. The bill was again returned in open court as a true bill.

The defendant’s motion to quash was refused for the reason that we considered the testimony of the foreman of the grand jury incompetent. It is well established that the testimony of a member of the grand jury is not competent to impeach an indictment which they have found: 14 Ruling Case Law, 204.

The only case which we have been able to find where this matter has been passed upon by an appellate court in Pennsylvania is that of Zeigler v. Com., not contained in our State Reports, but reported in 14 Atlantic Reporter, 237, where an attempt was made to impeach the finding of a grand jury on a motion to quash by offering the testimony of grand jurors that they had originally agreed to ignore the bill, but, after having heard other witnesses and having been exhorted by the district attorney to return a true bill, they did so return it. The court’s refusal to receive such testimony was assigned as error, and the Supreme Court, in passing upon the question in a very brief opinion, said: “To sustain the defendant’s first assignment of error would be to introduce a very bad practice, and one heretofore unknown to the criminal jurisprudence of Pennsylvania. That an indictment regulary found, and returned to court, should be impeached by the testimony of the grand jurors who found the bill is a proposition that cannot be sustained.”

If the bill had been returned not a true bill and the grand jury had then asked for a resubmission and, upon the bill being so resubmitted, had made a return of a true bill, more reason for complaint upon the, part of the defendant would be apparent, and we are of the opinion that defendant might have had some reason for complaint had we merely refused the request of the grand jury for a resubmission of the bill. The request having been made in open court, it being obvious that the grand jury were not satisfied with their former disposition of the bill and were fearful that they had made a mistake, fairness to the defendant seemed to demand the resubmission of the bill. Defendant was in no way prejudiced by the resubmission and the subsequent return, for we are satisfied that the first return could not have been successfully attacked. Therefore, no error was committed in the court’s refusal to quash the indictment.

[Here follows a summary of the evidence, which is omitted.]

Now, Feb. 14, 1929, defendant’s motion for a new trial and her motion for her discharge non obstante veredicto are severally overruled and refused.

Prom William McElwee, Jr., New Castle, Pa.