author: Brownson, P. J.,

text:
    Commonwealth v. Lichter.

      Criminal law — Indictment—Arrest of judgment — Matters of form.

    1. Matters of form In an indictment are not a ground for arresting judgment on a conviction thereunder by a jury, unless such defect of form amounts to a failure to charge an indictable offence.

      Liquor law — Constitutional law — Title of act — Incorporation by reference to Act of Congress — 18th Amendment of the Federal Constitution — Act of May 5, 1921.

    2. As soon as the 18th Amendment of the Constitution of the United States became operative, the Brooks Act of May 13, 1887, P. L. 108, became inoperative in so far as it authorized the licensing of the sale of intoxicating liquor, although in so far as it regulated and sanctioned the sale under licenses of alcoholic liquors that are not intoxicating, it continued in operation unaffected by the amendment.
    3. Under the 18th Amendment Congress has power to legislate for the regulation of both interstate and intrastate commerce in intoxicating liquors, and is in no wise dependent upon, or affected by, action or inaction on the part of the several states or any of them.
    4. The Volstead Act is a part of the supreme law of the land, and as long as it remains in force and unamended, the states cannot license the sale of beverages containing one-half of one per centum of alcohol by volume, although they may license the sale of liquors having a smaller alcoholic content.
    5. The purpose of the Woner Act of May 5, 1921, P. L. 407, was to regulate the sale of those beverages over whose sale the State has control, and to co-operate with the Federal Government in enforcing the law as to the sale of those whose alcoholic content is such as to place them beyond the licensing power of the State.
    6. The Wóner Act does not violate article iii, section 3, of the Constitution of Pennsylvania, because it applies to two classes of alcoholic liquors which are not separately referred to in the title of the act.
    7. The Woner Act does not violate article iii, section 6, of the Constitution, by making the distinction between intoxicating and non-intoxicating liquors dependent on the action of Congress in defining such liquors and thus attempting to incorporate an Act of Congress by reference, nor does it violate article ii, section 1, by attempting to delegate legislative power to Congress for future action.
    Com. v. Dougherty, 39 Pa. Superior Ct. 338, distinguished.
    8. The operation of a statute may be properly made contingent on an extraneous fact, and when such fact is the change in legislation paramount to and controlling the State law as to the subject-matter in question, the action of the legislature is clearly competent.
    9. An act of assembly should not be stricken down as unconstitutional unless it clearly, plainly and palpably violates some provision of the fundamental law.
    Motion for arrest of judgment and for judgment n. o. v. Q. S. Washington Co., Feb. Sess., 1922, No. 76.

      Howard W. Hughes, District Attorney, and Warren S. Burchinal, Assistant District Attorney, for Commonwealth.

      A. Kirk Wrenshall, Isaac W. Baum and David M. McCloskey, for defendant.
    April 17, 1922.
   Brownson, P. J.,

The defendant was found guilty by a jury of the unlawful sale of whiskey. The indictment was based upon the Brooks Law, Act of May 13, 1887, P. L. 108, as amended by the Act of May 5, 1921, P. L. 407, commonly known as the Woner Act. We have before us a motion in arrest of judgment. The reasons assigned in support of it go in part to the form of the indictment. Matters of form are not a ground for arresting judgment upon an indictment duly found, after conviction by a jury, unless the defect of form amounts to a failure to charge an indictable offence. We are of opinion that this indictment charges with sufficient certainty what amounts to a criminal offence, provided the statute under which it was drawn is a valid piece of legislation. We, therefore, pass at once to the grounds upon which the validity of that statute is attacked. It is contended that the act is inoperative because uncertain and incomplete in itself, and is unconstitutional and void because violative of several distinct provisions of the Constitution of Pennsylvania.

Before taking up these objections in detail, it will be useful to look at the historical background of the Woner Act and the purposes which the legislature sought to accomplish thereby.

Down until the time when the 18th Amendment of the Federal Constitution became operative, the Brooks Law regulated, by means of a license system, the retailing of vinous, spirituous, malt and brewed liquors, irrespective of their alcoholic content or their capability of producing intoxication in their ordinary use. That amendment prohibits, inter alia, the manufacture, sale or transportation of intoxicating liquors for beverage purposes within the United States. The Supreme Court of the United States decided in National Prohibition Cases, 253 U. S. 350, that this amendment operates directly upon and binds all legislative bodies, courts, public officers and individuals within the territorial limits of the United States, and that, by its own force and operation, it has had the effect of invalidating every legislative act, whether by Congress or by the legislature of a state or a territory, which authorizes or sanctions what the 1st section of the amendment prohibits. Accordingly, the instant the 18th Amendment became operative, the Brooks Law, in so far as it authorized the licensing, and the making when licensed, of sales of “intoxicating liquors,” became inoperative, though, in so far as it regulated and sanctioned the sale under licenses of alcoholic liquors that are not intoxicating, it continued in operation, unaffected by the amendment: Com. v. Vigliotti, 75 Pa. Superior Ct. 366, 271 Pa. 10; Cambria County Liquor Licenses, 78 Pa. Superior Ct. 28, 38-39.

After the adoption of the amendment, Congress, with the purpose of exercising the power, given to it by section 2, to legislate for the enforcement of national constitutional prohibition, passed the Volstead Act, which prohibited under penalties the manufacture, sale, etc., of any intoxicating liquor (with certain exceptions wherewith we are not concerned in the present case), and declared that the phrase “intoxicating liquor” should be construed as including, inter alia, all liquors containing one-half of 1 per centum of alcohol by volume and fit for use for beverage purposes. This enactment, the court declared in National Prohibition Cases, 253 U. S. 350, did not transcend the limits of the power of Congress to legislate for the enforcement of prohibition under the constitutional amendment. The majority of the court merely announced conclusions, without an opinion stating the reasons and grounds thereof, and there seems to have been some divergence of views as to what is the basis and ground of conclusion No. 11, to the effect that the act is valid, in so far as it treats liquors containing the percentage of alcohol mentioned, as within the power of prohibition by an enforcement law. Whether this conclusion is to be regarded as resting upon the view advanced by Chief Justice White in his concurring opinion, on page 391, that as the Constitution does not define the intoxicating beverages which it prohibits, the duty and function of defining them devolves upon Congress; or whether the view of the majority was (as their reference to the case of Ruppert v. Caffey, 251 U. S. 264, may tend to indicate) that as a means of effectually preventing the manufacture, sale, etc., of liquors that unquestionably are intoxicating, Congress has the right and power to class with them, and to prohibit under the same designation, other liquors which, although not in fact intoxicating as this term is commonly understood, yet contain, in a less degree, the same toxic principle that is found in liquors that are so — in either event, it is a fact that the prohibition, in the Volstead Act, of beverages containing as much as one-half of 1 per cent, of alcohol has been determined by the court to be valid. And the court further declared (conclusion No. 9) that the power of Congress to legislate is territorially coextensive with the operation of section 1 of the amendment, embraces intrastate transactions, as well as importation, exportation and interstate traffic, and is in no wise dependent upon, or affected by, action or inaction on the part of the several states or any of them.

The result of all of this is that the Volstead Act, being a valid law passed by Congress in pursuance of the Constitution, is, by virtue of the 2nd section of article VI of the original Constitution, a part of the “supreme law of the land, . . . anything in the constitution or laws of any state to the contrary notwithstanding.” The sale of beverages containing one-half of 1 per centum of alcohol by volume is now forbidden by supreme and paramount national law, and, therefore, Pennsylvania, so long as the Volstead Act remains in force and unamended, cannot license the making of any such sales, though she may license the sale of liquors having a smaller alcoholic content: Com. v. Vigliotti, 271 Pa. 10. If, however, the national law should at any time be changed by substituting a different minimum alcoholic content, as, e. g., 1 per centum, the licensing power of Pennsylvania would correspondingly expand.

This was the situation by which the legislature was confronted, and with which it intended to deal, when it passed the Woner Act; and the design of this act was to cause national prohibition and Pennsylvania’s license system to fit into each other in such manner as that, together, they should occupy the entire field with respect to alcoholic liquors. The legislature desired to license the sale of such liquors to the extent that it has power to do so; to have the license system occupy the field up to the line where national prohibition begins and presents an obstacle to its further extension; and also, in case that obstacle should at any time by congressional action be moved back, thus placing within the control of the State a portion of the field now occupied by national prohibition, it wished to have the license system move up to the new line and occupy the additional ground thus thrown open to it. And, on the other hand, it was willing to co-operate with the national government for the enforcement of national prohibition.

With these purposes in the mind of the legislature, it amended the Brooks Law, which is an act dealing with the entire subject of the retailing of alcoholic beverages, in such manner as to divide these beverages into two classes, and to deal with these classes separately; the first class consisting of those the sale of which it has power to license, and the second of those which it cannot license because national prohibition blocks the way. As to the former, it retains the license system; as to the latter, it co-operates with the national government by enacting, in pursuance of the power delegated to the states by the 18th Amendment, an enforcement law contained in the new sections added to the Act of 1887. And in order that the law of Pennsylvania may at all times correspond to the national law, and that the State and national systems may always dovetail into each other, and in the event of a change in the latter at a time when the Pennsylvania Legislature shall not be in session, there shall be, even temporarily, no gap or unoccupied field between the two, it is provided, further, that the license system shall expand or contract in its scope in the field occupied by national prohibition [as the latter contracts or expands] by congressional action, and that the portions of the act (the new sections numbered 20, et seq.) which are designed for the purpose of aiding in the enforcement of national prohibition shall at all times extend in their operation just as far as national prohibition itself extends.

It may be that the Woner Act could have been more felicitously worded, but, as we read it, the above is its true design, intent and meaning.

We are now ready to consider the objections which have been made to the constitutionality of the act.

We think but little time need be spent upon the first objection, viz., that the act contains more than one subject not clearly set forth in the title, and, therefore, violates article ill, section 3, of the Constitution.

In our opinion, this act contains but one subject, to wit, alcoholic liquors. Such liquors are a distinct class. True, they are divisible into two subclasses, those which are and those which are not intoxicating, and this statute deals with both. So did the original Brooks Law. The Woner Act, however, amends the Brooks Law in such a manner as to cause it to deal with these two sub-classes separately and to apply to them different regulations. But this does not cause the statute to offend against the constitutional provision referred to. If it were held to have this effect — if every statute dealing with a class of things, which, upon the basis of a rational and real distinction, divides the same into sub-classes and applies to the latter different regulations, is to be held unconstitutional — a very large proportion of the laws upon our statute books would be wiped out of existence. We think, also, that the title of the Woner Act states very clearly the nature of the amending legislation thereby enacted. In our opinion, this act does not violate section 3 of article ill.

The principal assault made upon the validity of the Woner Act is upon the ground that it is not complete legislation in itself, but attempts, in violation of section 6 of article ill of the Constitution, to incorporate in it Acts of Congress by reference only, and also offends against section 1 of article II, in that it attempts to delegate legislative power to the Congress of the United States, a body foreign to the Commonwealth of Pennsylvania.

The case of Com. v. Dougherty, 39 Pa. Superior Ct. 338, is relied on as ruling the present case in connection with the point that the provisions of Acts of Congress are “extended or conferred by reference” only, contrary to article ill, section 6. Congress, in the exercise of its power to regulate the commerce of the District of Columbia and interstate commerce, had passed a “Food and Drugs Act.” The legislature, in an act on the same subject passed to regulate the domestic commerce of Pennsylvania, provided that no action for the penalty thereby imposed for the adulteration of certain articles of food should be sustained “when the article alleged to be adulterated is not adulterated within the meaning of the Food and Drugs Act of June 30, 1906, 34 Stat. at L. 768,” enacted by Congress, etc. This was held to be unconstitutional as an “extending” or “conferring” of an Act of Congress by reference to its title only. It is to be observed, however, that the act of assembly undertook to render applicable to a new subject-matter, to wit, the intrastate commerce of Pennsylvania, an Act of Congress which by its own force and operation did not apply thereto at all. This was undertaking to give to the provisions of the Act of Congress an effect and operation, as law, which they did not have as they stood in the Federal statute. It was plainly an extending of those provisions to things not within their scope originally, and which by their own force and operation they did not affect. On the other hand, the reference in the Woner Act to Acts of Congress does not purport nor attempt in any way to give to the provisions thereof any new force and operation as law by extending them to and making them operative upon persons and thing's, or either, that would not he governed by them if the act of assembly had not been passed. As we have seen, Acts of Congress passed pursuant to and for the enforcement of the constitutional amendment become, immediately upon their enactment, a part of the law by which the internal commerce of Pennsylvania, so far as relating to intoxicating liquors, is regulated, and for the purpose of regulating such commerce they have precisely the same operation, in every respect, by their own force and effect, that they would have if the Woner Act had never been enacted. It refers to them, not for the purpose of giving to them any new force, operation or application, but for the purpose of recognizing, as was said in Cambria County Liquor Licenses, 78 Pa. Superior Ct. 28, 39, “the paramount authority of the Acts of Congress passed pursuant to, and in the enforcement of, the 18th Amendment of the Constitution of the United States;” not for the purpose of undertaking to do what the Superior Court says in Com. v. Sweeney, 61 Pa. Superior Ct. 367, the act that was in question in Com. v. Dougherty undertook to do, viz., “to read into itself, by reference to its title, an entire Act of the Federal Congress,” but merely for the purpose of recognizing, as controlling, the congressional definition of the phrase “intoxicating liquors” for the purposes of national prohibition.

This brings us to the position taken by counsel that the Woner Act is not a complete expression of legislative will, but leaves it to Congress to say what shall be the law of Pennsylvania. The legislative will and intention seem to us to be completely manifested by the statute, to the effect stated in an earlier part of this opinion, viz., that the sale of all alcoholic liquors which are outside of the scope of national prohibition, and which, therefore, the State may license, shall be regulated by the prescribed license system, but that as to liquors which are or shall be the subject of national prohibition, the legal machinery of the State shall be used to co-operate in enforcing that prohibition. The legislative will was completely expressed when the act left the legislative halls, but its operation was to depend upon a contingency, to wit, the action of Congress in settling from time to time the scope of national prohibition.

There is abundant authority to the effect that the operation of a statute may be made contingent upon an extraneous fact, and that such extraneous fact may be the action of a foreign legislative body. A good illustration of this, accompanied by a very valuable and instructiee opinion, is found in the case of People v. Fire Association of Philadelphia, 92 N. Y. 311. It was there held that a law of New York providing that an insurance company of another state seeking to do business in New York should pay for taxes, etc., an amount equal to what its home state, by “existing or future laws,” should impose upon New York companies seeking to do business therein, was not invalid as a delegation to the legislature of another state of the power to say what the law of New York should be. To the same effect is Phœnix Ins. Co. v. Welch, 29 Kan. 672. In 12 Corpus Juris, § 325, page 842, it is said that “by the weight of authority, and the better reason, such statutes have been sustained on the ground that they do not delegate power to the foreign legislature to fix the amount of the charges, but merely impose taxes, etc., the amount of which is made contingent on an extraneous fact.” We have long had in our own statutes instances of laws, the operation of which was made dependent upon present and future action by legislatures of other states, e. g., the act which regulated the transfer of trust funds to other jurisdictions: Act of April 21, 1856, P. L. 495, amended May 13, 1889, P. L. 190. The provision in the Federal Bankrupt Act directing the allowance of such exemptions, dower, priority of payments, etc., as the laws of the particular state shall provide for does not constitute a delegation of congressional power nor render the act void: Hanover National Bank v. Moyses, 186 U. S. 181. Other instances of congressional legislation are mentioned in the New York case above cited. The principles by which the scope of this doctrine is limited and defined were well stated in the case of State v. Parker, 26 Vt. 357, quoted with approval in People v. Fire Association of Philadelphia, 92 N. Y. 311, as follows : “If the operation of a law may fairly be made to depend upon a future contingency, then it makes no essential difference what is the nature of the contingency, so it be an equal and fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object of the statute as not to be a mere idle and arbitrary one;” to which was added: “One may find any number of eases in the legislation of Congress where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or commercial rules, edicts or restrictions of other countries-”

In the case at bar the contingency upon which the operation of the amended Brooks Law depends is certainly one “so far connected with the object of the statute as not to be a mere idle and arbitrary one.” That contingency is an enactment of Congress determining and declaring what shall be deemed to be intoxicating liquors for the purposes of national prohibition, and such an enactment, when made, operates as a limitation upon the power and right of the Legislature of Pennsylvania to deal with the traffic in alcoholic beverages in its own way. When, therefore, the legislature provides, as it has done in this statute, that the line of division between the beverages which shall be licensed and those the sale of which shall be punished for the purpose of aiding in the enforcement of national prohibition shall always be drawn just as far toward one side as the enactments of Congress permit the State statutes to go, this is no reference to a “mere idle and arbitrary” contingency. The plainly intended meaning of the amended Brooks Law, and its effect as a whole, are as follows: (a) The manufacture, sale, etc., of intoxicating liquors which, by reason of national prohibition, Pennsylvania has or shall have no power to license shall, for the purpose of aiding in the enforcement of such prohibition, be punishable as a misdemeanor by the State courts; but (b) the sale of alcoholic liquors which shall not have been brought by Congress within the scope of national prohibition, and which, therefore, Pennsylvania may license, shall be regulated by licenses, and shall be punishable only if made without license, or (when by a licensee) if made under certain specified circumstances. The contingency, then, is in the present instance one vitally connected with the design and purpose of the statute; it is one upon which depends fundamentally the right of the legislature to make law of that which it desired to be the law.

For the legislature to provide in a statute that its operation with respect to what it commands or prohibits shall change, in the event of a- change in some paramount regulation whereby the legislature’s power is- controlled and limited, is not a new thing. It has been done heretofore in Pennsylvania. An instance of this is found in the Ballot Law of June 10, 1893, P. L. 419, whereby the legislature, wishing to make ballots absolutely secret, but being at the time prevented from so doing by the constitutional requirement that they be numbered for identification, directed election officers to number ballots, cover up the numbers, and then deposit in the ballot-box, so long as this constitutional provision should stand, but provided further that if the people should ever remove it from the Constitution, then voters should themselves deposit their ballots in the box without any numbering (section 15). It never was supposed or dreamed that this was invalid as a delegation of legislative power to the people, i. e., a reference to them of what should be the details of statute law. It was merely providing that the operation of the statute should depend upon the existence or non-existence, at any particular time in the future, of a certain state of facts. So, it seems to us, it was competent for the legislature to provide that at any given time in the future alcoholic beverages which shall then answer a certain description, viz., that they are outlawed by paramount national authority, shall be dealt with in one way, and beverages then answering a different description, viz., that they are not so banned by paramount national prohibition, shall be dealt with in a different manner.

The whole difficulty in the minds of those who argue that such prospective legislation is invalid arises, says Finch, J., in People v. Fire Association of Philadelphia, 92 N. Y. 311, 319, “from a failure to regard the foreign law, relatively to our own legislation, as simply and purely an extrinsic and contingent fact. Such fact, like any other, may justly influence and even occasion legislative action, without at all changing its nature, destroying its discretion or abridging its duties or its judgment. Most laws are made to meet future facts. They are complete when passed, but sleep until the contingency contemplated sets them in operation. . . . Such contingency may sometimes be, instead of a certain and definite fact, one which is variable and changeable. The legislation suited to such a fact and adapted to such a future emergency may properly recognize its movable character and be itself made flexible to the changing emergency, and this very characteristic is the product of legislative will and discretion rather than a surrender of it.” See, also, the remarks on page 322. In the quotation just made the reference is to the action of the legislature of another state. With how much more force does what is said apply to the future action of a paramount authority which will be binding on the legislature and determinative of the limits of its power to legislate, and the validity of its then existing legislation.

It is argued that the amended Brooks Law is incomplete, and therefore invalid, because a person will have to look outside of the statute itself in order to ascertain what it is that section 20 prohibits under penalty. Of course he will. And so would he have to do if the act merely prohibited the sale of intoxicating liquors without any definition; he would then have to investigate as to whether a certain particular liquor which he proposes to sell is intoxicating in fact. This argument, if sound, would strike down the entire doctrine that the operation of legislation may be made to depend upon a future contingent and extrinsic fact; a doctrine which is well recognized. Moreover, what in this instance the individual has to look into, outside of the statute, is merely national legislation acting upon and binding himself personally, and which he is at any rate bound to know, independent of anything contained in the amended Brooks Law.

There has been cited to us, and the defendant very strongly relies upon, an opinion given on Nov. 21, 1921, by the Justices of the Supreme Court of Massachusetts to the senate of that state, to the effect that portions of a certain enforcement bill then pending in the Massachusetts Legislature would, if enacted, be unconstitutional. With the conclusions reached in that opinion we are generally in accord. The defendant relies specially upon a conclusion that section 1(b) of the bill, providing that the word “liquor” and the phrase “intoxicating liquor,” as therein employed, “shall have the meaning defined from time to time by the Congress of the United States for the purpose of enforcing the provisions of the 18th Amendment,” etc., would be unconstitutional. With regard to this conclusion we have three remarks to make: First, we have not been furnished by counsel with a complete copy of the Massachusetts bill, so that we might be able to see with certainty whether there is anything in some other part of it, or in its scope and structure as a whole, that would throw light upon the view taken by the judges of section 1 (b). Secondly, this conclusion of the judges seems, from their opinion, to be based in part upon the view that the Massachusetts Legislature would by that bill be attempting to treat the Congress of the United States “as a subsidiary board or commission,” whereas the Brooks Law, as amended by the Woner Act, is, as our Superior Court says (78 Pa. Superior Ct. 28, 39), treating Congress, not as a subsidiary board or commission, but as what it really is with respect to the subject-matter, viz., a body with authority to take action which will be paramount to Pennsylvania legislation. And, thirdly, there is a decided and a clear difference between saying, as the Massachusetts bill did, that the word “liquor” (without any qualifying adjective) shall have, as used therein, whatever meaning Congress shall give to that word at any time in the future, and saying, as the Woner Act does, that the phrase “intoxicating liquors” shall mean “anything found and determined from time to time to be intoxicating by Act of Congress passed pursuant to, and in the enforcement of, the Constitution of the United States of America” (the effect of which will be to bring the thing so “found and determined” within the scope of national prohibition). Congress has, by the Volstead Act, given to the word “liquor” (standing alone) a certain meaning, the same as that of the phrase “intoxicating liquor,” but by some future act it may give to it an entirely different meaning. Thus, the Massachusetts bill was referring to the will of Congress what a word contained in the bill shall mean, whereas the 1st section of the Brooks Law, as amended by the Woner Act, expresses the will of the legislature itself as to what its words shall mean. Therefore, even if the opinions of the Massachusetts judges were binding precedents for this court, this opinion would not rule the present case.

An act of assembly should not be stricken down as unconstitutional unless it clearly, plainly and palpably violates some provision of the fundamental law. To be in doubt about its constitutionality is to be resolved in favor of its validity: Com. v. Mathues, 210 Pa. 372, 391, and cases cited. If it be at all possible to give it a construction which would make its operation constitutional, this should be done ut res magis valeat quam, pereat. And for this purpose regard should be had to its true intent and meaning rather than to the mere form of words in which the legislature has attempted to express this meaning. “The substance of the legislative action should be regarded, rather than the form:” Cooley, Const. Lim. (7th ed.), 137. An illustration of this principle is found in City of Wilkes-Barre v. Meyers, 113 Pa. 395, 400, where an act excepted cities of the first class, which exception, if literally interpreted, would render it unconstitutional, but the court, finding that the real intent of the act was to except Philadelphia only (which, with respect to the particular subject-matter, the Constitution permitted), disregarded form and held the act constitutional.

After a careful consideration of the questions which have been raised in this case, we feel that, looking at the substance of the legislation according to its true intent and meaning rather than at mere form, we cannot say that the amended Brooks Law so clearly and plainly violates the Constitution of Pennsylvania that it ought to be stricken down as invalid.

And now April 17, 1922, after argument and due consideration, it is ordered that the defendant’s motion in arrest of judgment, and also his motion for the entry of judgment in his favor non obstante veredicto, be overruled, and that the defendant appear in court for sentence on Monday, April 24, 1922, at 10 o’clock A. M.

From Harry D. Hamilton, Washington, Pa.


source: Caselaw Access Project

author: Endlich, P. J.,

license: Public Domain

text:
    Weiser v. Seaboard Steel Corporation.

      Mechantes’ liens — Notice of filing lien — Filing of affidavit of service within one month — Failure of prothonotary to record — Petition to amend record.

    Plaintiff filed a mechanic’s lien against defendant’s property on June 13, 1919, and notice of its filing was served on defendant by the sheriff, who, on July 7, 1919, executed an affidavit of service and left it with the prothonotary’s office for filing. The paper presumably became lost and no record of the filing was made. Subsequently the real estate covered by the lien was sold at receiver’s sale, and, prior to the distribution of the fund, the defendant filed a petition to strike off the lien because of the failure of the record to show the filing of the affidavit within one month after the filing of the lien. The plaintiff thereupon filed a petition, praying that the record be amended so as to show the filing of the notice and return of service thereof as of the time when the sheriff actually left it in the prothono-tary’s office: Beld, that the requirement of section 21 of the Act of June 4, 1901, P. L. 431, as amended by the Act of April 5, 1917, P. L. 42, was mandatory, subject to the power of the court to grant relief, where to hold the party to the strict letter of the statute would lead to inequitable results, and that to strike off the plaintiff’s lien in this case would be to penalize him for an accident for which he was in no degree • accountable. The rule to amend the record was made absolute and the rule to strike off the lien was discharged.
    Rule by defendant to strike off lien. Rule by plaintiff to amend record. C. P. Berks Co., June T., 1919, No. 2, M. L. D.

      E. H. Deysher and Fox & Geyer, for plaintiff.

      Cyrus G. Derr and Brown & Williams, for defendant.
    Nov. 21, 1921.
   Endlich, P. J.,

This is an application on the defendant’s. part to strike off a mechanic’s lien on the ground of alleged failure of the claimant to comply with all the requirements of section 21 of the Act June 4, 1901, P. L. 431, as amended by the Act of April 5, 1917, P. L. 42; and an application on the claimant’s part for leave to amend. The lien was filed on June 13, 1919, and there seems to be no question concerning the form or sufficiency of the notice of its filing, and no denial of proper service of the notice within one month, as prescribed by the enactments referred to. These matters, however, are not made to appear on the record by any affidavit found filed in the office of the prothonotary within that time, as ordained by the statute. It is upon this circumstance that the application to strike off is predicated. The claimant, being advised in time by the sheriff (who was charged with the duty of serving the notice) that these requisites had been complied with, did nothing further until the property came to be sold in a receivership in the United States District Court, where a decree was entered that a certain mortgage being foreclosed was a first lien. The claimant presented his petition in that proceeding, traversing that part of the decree, which was thereupon modified so as not to affect the right of the claimant to contend that his lien antedated the mortgage because relating back to the commencement of the work upon the ground. The property was then sold, and upon the distribution of the fund in the United States District Court it was for the first time discovered that there was no notation on the proper docket of the service of notice of filing the mechanic’s lien, and a search failed to disclose any affidavit of such service in the files. The claimant then, on April 4, 1921, filed a carbon copy of the original notice, together with an affidavit by the sheriff, setting forth the fact and manner of service of the notice on July 5, 1919, and had the same noted upon the docket, to supply the loss of another copy of the notice and a similar affidavit which the sheriff had left in the prothonotary’s office for filing on July 7, 1919. Subsequently, on April 29, 1921, the claimant presented a petition, praying “that the said return thus filed under date of April 4, 1921, be ordered and directed to be filed nunc -pro tunc as of July 5, 1919, and the record in this case be amended so as to show the filing of the said notice and return of service thereof as of July 5,1919,” whereupon a rule was granted. In the meanwhile, on April 26, 1921, the defendant obtained the rule to strike off the lien.

Such, briefly stated, are the allegations of the claimant, and it seems impossible to carefully read the depositions taken in this proceeding without reaching the conclusion that this statement represents the substantial truth of the case. If so, it follows that no carelessness or intentional non-performance of the statutory duty can be ascribed to the claimant, and that everything required by the statute was done and substantially performed, with the exception of the technical incident of making the record show the service of notice of filing the lien. It is contended on the part of the defence that this omission cannot be cured, but is fatal to the validity of the lien; whilst, on the other side, it is contended that this result does not necessarily follow and ought not in justice to follow in this instance.

The question has been raised and considered in a number of cases in various Common Pleas Courts of the State, some holding that the requirement of the statute is absolutely imperative and its non-observance absolutely fatal— others, that its enforcement is discretionary with the court — and still others, that the courts may for equitable reasons relieve against it. Without going into an analysis of each one of the cases, the following decided at nisi prius may be regarded as supporting the contention of the defence: Compton v. Sankey, 13 Dist. R. 535; Crider v. McCafferty, 13 Dist. R. 638; Walter v. Powell, 13 Dist. R. 667; Mock v. Roscoe, 14 Dist. R. 774; Hicks v. Riebling, 54 Pitts. L. J. 109; Craighill v. Cawley, 64 Pitts. L. J. 796; Flenagin v. Kearns, 66 Pitts. L. J. 848. Of these, possible exceptions and modifications are recognized in Compton v. Sankey, supra, and Mock v. Roscoe, supra, on equitable grounds. On the other side may be cited Gerrard v. Ecker, 12 Dist. R. 332; Nagle v. Saengerbund, 14 Dist. R. 472; Killen v. Carson, 21 Dist. R. 787; Lumber Co. v. Turnbach, 30 Pa. C. C. Reps. 408; Hicks v. Riebling (supplemental opinion), 54 Pitts. L. J. 109. The statute has also been passed upon in the appellate courts. In O’Kane v. Murray, 252 Pa. 60, where no notice appeared to have been given to the owner, but service was accepted by his counsel, it was held that this was insufficient and afforded ground for striking off the lien. This decision must, however, be read together with Christ v. Dubosky, 261 Pa. 297, where the lien was filed July 7, 1913, and the return of service of notice was actually filed July 18, 1913, but through an error had been docketed as of Aug. 18, 1913, as the result of the slipping of the rubber dating stamp, and the Supreme Court ordered the proper correction to be made, and refused to strike off the lien. See, also, Thirsk v. Evans, 211 Pa. 239. In Thompson v. Radell, 42 Pa. Superior Ct. 105, the decision was against the validity of the lien, but a possibility of escaping from that conclusion is recognized, though only “for the sake of the argument.”

Taking all these decisions together, it would seem that the result of their teaching is that the requirement of section 21 is mandatory, subject to the power of the court to grant relief, where to hold the party to the strict letter of the statute would lead to inequitable results. To do so in this instance would seem clearly to lead to such. The claimant was advised by the officer who had the matter in charge that the notice had been served and filed, as in truth it had been. The officer, leaving the paper in the prothonotary’s office, did everything that he could do short of interfering with the files or records themselves, which would, of course, be intolerable. For the disappearance of the paper the claimant was not responsible. To strike off the plaintiff’s lien because of what happened in this case would be to penalize him for an accident for which he was in no degree accountable. Moreover, the effect would probably be to rob him of his only security for what is owing to him, and of the means of enforcing payment; whereas, the refusal to strike off will do no ultimate harm to any one. Under these circumstances it would seem that the duty of the court is clear, viz., in accordance with the practice indicated in Christ v. Dubosky, 261 Pa. 297, to make the rule for an amendment of the record absolute, and thereupon to discharge the rule to strike off the lien.

The rule to amend the record is made absolute, and thereupon the rule to strike off the lien is discharged.

Prom Wellington M. Bertolet, Reading, Pa.


author: Newcomb, J.,

text:
    Sulzer v. Gross.

      Practice, C. P. — Affidavit of defence — Statement of claim — Exceptions to statement — Act of May 14, 1915.

    1. A motion for judgment for want of a sufficient affidavit of defence, entered while exceptions to the statement of claim are still pending, is premature and will be overruled.
    2. Section 21 of the Act of May 14, 1915, P. L. 483, relating to extension of time, takes effect only at the stage when the substance, and not the mere form, of the claim or counter-claim must be met, whether on legal grounds or those of fact. In either case the party is then taking defence to the adversary’s demand.
    3. Such is not the case where a party moves to strike off for informality. That step is authorized by section 21, where nothing is said about obtaining additional time to plead.
    4. In its nature a question of form is strictly preliminary. In order to serve its appointed purpose it must operate as a quasi-stay of proceedings so far as concerns the merits.
    5. Where a party excepts to the form of proceedings under section 21 of the act, he does not incur the consequences of default for not having secured an extension of time pending the disposal of his exceptions.
    Exceptions to plaintiff’s statement. Motion for judgment. C. P. Lackawanna Co., Nov. T., 1921, No. 279.

      Knapp, O’Malley, Hill & Harris, for plaintiff; J. Memolo, for defendant.
    Nov. 14, 1921.
   Newcomb, J.,

These counter-motions reflect some difference of opinion in mind of counsel in and about the operation of the Practice Act of 1915. The chronology of the suit may be stated as follows:

1921, Sept. 30th, summons in assumpsit, returnable Nov. 7th; Oct. 13th, filed plaintiff’s statement; Nov. 7th, statement excepted to; Nov. 12th, motion for judgment.

Plaintiff moves for judgment by default for want of an affidavit of defence. The motion seems to be without precedent, in that the exceptions to the statement are still pending. According to local usage, they would go to the argument list for hearing during the week of Dec. 5th. But upon that suggestion being made, it was stated by counsel at bar that what is wanted is expedition, and it was thereupon agreed that the two questions should go to a hearing forthwith.

It is self-evident that the learned counsel for plaintiff considers the mere presence of the exceptions to his statement quite immaterial to the question of the adversary’s default, upon which his motion for judgment must depend. Yet, if quite sure of his ground, there would seem to have been no good reason why judgment had not been taken by praseipe instead of by motion, as provided by statute in ease of such default.

His argument is this: The statute is at pains to provide for enlarging the time for any pleading by means of leave of court; such method must be deemed exclusive, and not having been followed by defendant, the time for taking defence has necessarily expired by limitation in terms of the statute itself.

To one having in mind the Act of March 21,1806, § 18, 4 Sm. Laws, 326, 332, this reasoning, at first blush, seems rather orthodox. But the trouble with it is that it proves too much.

Carried to its logical extent, it calls for definitive judgment in damages against defendant to-day, though to-morrow plaintiff’s cause of action may become extinct by force and effect of an order striking his pleading from the record.

Nothing short of inexorable necessity could support the conclusion that such anomalous result was in contemplation of the statute.

The difficulty disappears, however, if section 22 be understood as taking effect only at the stage when the substance, and not the mere form, of the claim or counter-claim must be met, whether on legal grounds or those of fact. In either case the party is then taking defence to the adversary’s demand. Not so when he moves to strike off for informality. That step is authorized by the 21st section of the statute, where nothing is said about obtaining additional time to plead. No doubt that is due to the functional character of such motion. There may be nothing to answer. In its nature, a question of form is strictly preliminary. In order to serve its appointed purpose, it must operate as a quasi-stay of proceedings, so far as concerns the merits. Therefore, the supposition that defendant had incurred the consequences of default for want of an extension of time to plead pending his exceptions is believed to be erroneous.

Turning, then, to the question raised by the exceptions, it appears that the plaintiff’s statement is challenged for duplicity. Counsel says he is at loss to know whether his client is sued on a negotiable instrument known as a “trade acceptance” or upon the underlying contract of purchase of certain merchandise.

The criticism does not seem to be well founded. It is clear enough that plaintiff declares upon the acceptance which was given by defendant to secure the price of the merchandise. True, it had been in the meantime negotiated; but, after protest, it had eventually come back to the hands of plaintiff as the payee. Hence, the suit is between the original parties to an acceptance, equivalent to a promissory note, so that the claim is open to any defence pertinent to the original transaction.

The motion for judgment is refused as premature. The exceptions to plaintiff’s statement are overruled, without prejudice to the right of defendant, upon timely application, to move for leave to answer.

From William A. Wilcox, Scranton, Fa.


author: Stone, J.

text:
    Hamilton et al. v. Hamilton.

      Equity — Evidence—Jurisdiction—Trusts—Account — Funds derived from condemnation.

    1. Where it appeared that real estate was conveyed by a father to his son for the purpose of conserving the property, and this fact was established by parol evidence and statements of the son at various times that he held the property for the use of his brothers and sisters, the son was decreed a trustee.
    2. Where a bill was filed to have defendant declared a trustee for plaintiffs, who were sisters and co-heirs with defendant, and it appeared that the real estate in question had been condemned by the Government, no accounting was necessary, as the amount due each heir could be definitely determined from the fund received from the real estate.
    Bill for account. C. P. Allegheny Co., Jan. T., 1921, No. 3.

      Ferd H. Phillips, for plaintiff; Harry S. Loughry, for defendant.
   Stone, J.

This was a bill filed by the plaintiffs to compel the defendant to account for and pay over to them the moneys due them as heirs of their father, Matthew M. Plamilton, and to restrain the defendant from disposing of any of such moneys in his possession or control.

From the pleadings and evidence taken at the trial we make the following j findings of fact and conclusions of law:

Findings of fact.

1. The parties to this action are all brothers and sisters and children of one Matthew M. Hamilton, who died July 7, 1918, and all are residents of the County of Allegheny, saving and excepting Nettie M. Beggs, who appears to be a resident of Los Angeles, California.

2. The wife of Matthew M. Hamilton died many years ago.

3. Matthew M. Hamilton for some time prior to June 5, 1916, had been living in various places, and, among others, with his daughters, Mrs. Mary Swan and Mrs. Annie E. Kiefer; he did not live with the defendant, William Hamilton, although the latter lived in the Borough of Ardmore, as did the defendant’s sister, Mrs. Annie E. Kiefer.

4.On or about June 5,1916, the defendant visited his father and took with him a member of the bar and a cousin. All three prevailed upon Matthew M. Hamilton to convey to the defendant, William M. Hamilton, the real estate of which he was at that time seized, in order that the same be not dissipated, but that it be conserved for the mutual benefit of all of the parties to this action.

5.As a result of such request and inducement extended to Matthew M. Hamilton, he conveyed two separate and distinct tracts of land, both of which are situate in Neville Township, of this county, and fully described in the bill, for the consideration of “One dollar ($1.00) and natural love and affection.” It was understood between the parties to this action that the defendant, William M. Hamilton, was to hold and manage the real estate referred to, and upon the death -of Matthew M. Hamilton to divide it, share and share alike, among his children, consisting of the parties hereto.

6.By proceedings entered in the District Court of the United States for the Western District of Pennsylvania, the real estate referred to was condemned and appropriated by the United States of America, and the defendant received therefor in cash, as a result of such condemnation proceedings, the total sum of $8331.07.

7.From the total amount received for the condemnation of said properties defendant has paid on account of expenses the sum of $1000, and there was likewise paid to the wife of the defendant, William M. Hamilton, the sum of $250, or a total of $1250, and, after deducting the total amount paid from the sum received, we find the distributive share of each of the parties to this action is in the sum of $1416.21. Of the said sum each has received the sum of $200, leaving, therefore, the amount due by the defendant to each of the plaintiffs, disregarding the question of interest, the sum of $1216.21, which money he has in his possession and which sum should be paid to each of the said plaintiffs.

Conclusions of law.

That a decree be drawn directing the defendant to pay to each of the plaintiffs, John H. Hamilton, Mary Swan, Annie E. Kiefer and Nettie M. Beggs, the sum of $1216.21.

Discussion.

All of the plaintiffs, saving and excepting Mrs. Nettie' Beggs, appeared before us, and all testified that at one time or another the defendant had notified them that he had obtained the title to the property in question from their father in order to protect and conserve it for the interest of the parties to the bill. It is true all of this was denied by the defendant, but when we come to consider the other corroborating evidence, we are satisfied that the conveyance referred to was in fact made by Matthew M. Hamilton to the defendant for the mutual benefit of all of the parties to the bill.

While the defendant had the opportunity, he does not explain anything about the transfer or why or how it came to be made, but was satisfied with a cold denial of the statements of the plaintiffs and their corroborating witnesses. An examination of the deed shows that the conveyance was made for “One dollar ($1.00) and natural love and affection.” We assume, of course, that the father had natural love and affection for all of his childrén, but the evidence fails to disclose that the defendant reciprocated. As a matter of fact, in his declining years and when he needed the care and attention of his children, those who gave it to the father were his daughters, Mrs. Swan and Mrs. Kiefer, and not the defendant.

The defendant, at the trial, raised the question and objected strenuously to his sisters and his brothers testifying as to what he had told them concerning the transfer, in view of the fact that they gave no evidence as to the understanding had between the father, Matthew M. Hamilton, and the son, William M. Hamilton. This evidence possibly might not have been sufficient, when standing alone, for us to find that William M. Hamilton actually held the properties in trust for the mutual benefit of all of the children of Matthew M. Hamilton; but when we consider the other evidence, especially that of the cousin of the parties to the bill, we are forced to the conclusion, and we have accordingly so found, that, as between the plaintiffs and the defendant to the bill, defendant did in fact hold the said properties for the mutual benefit of his brothers and sisters and himself. Having in mind the attitude of the defendant on the stand, and his hesitating manner and his reluctance to answer questions, we are satisfied that our conclusions are in accordance with the wishes and intentions of Matthew M. Hamilton, the grantor and father of the parties to the bill.

The bill prays for an accounting, but we do not deem it necessary to order the defendant to account, and all for the reason that the testimony shows the specific amount received by the defendant from the United States Government on the condemnation of the properties in question; it also shows all of the credits to which defendant is entitled, and all that is left is to distribute equally among all of the parties to this bill the proceeds of the condemnation.

At the trial, the defendant objected to the trial of this case in a court of equity, on the ground that the plaintiffs had an adequate remedy at law. An action at law might, perchance, have settled the controversy between the parties to the bill. In view of the fact, however, that the plaintiffs in their pleadings indicated and averred that they were not in possession of all of the facts in order to make the proper averments, and for other reasons which are quite apparent, we were convinced that the case should proceed as it was and not be certified to the law side of the court.

From Edwin L. Mattern, Pittsburgh, Pa.


author: Fox, J.,

text:
    Liberato et ux. v. Royer & Herr.

      Workmen’s Compensation Act — Non-resident aliens — Right to compensation — Treaty between the United States and Italy — Act of June 2, 1915.

    1. Section 310 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, provides, in part, that alien parents, not residents of the United States, shall not be entitled to compensation under that act.
    2. The treaty between the United States and Italy proclaimed Nov. 23, 1871, as amended in 1913, provides that citizens of each of the high contracting parties shall receive, in the states and territories of the other, the same rights and privileges as are or shall be granted to natives, including the right of action for death given relatives of the injured party.
    3. That part of section 310 of the-Workmen’s Compensation Act referred to is in conflict with, and in violation of, the treaty with Italy, which is a part of the supreme law of the land, and is, therefore, with reference to non-resident aliens who are subjects of Italy, unconstitutional and void.
    Appeal from decision of the Workmen’s Compensation Board. C. P. Dauphin Co., Sept. T., 1921, No. 297.

      John C. Nissley, for plaintiffs; Beidleman & Hull, for defendants.
    March 22, 1922.
   Fox, J.,

In this case the record discloses that the plaintiffs are non-resident aliens, being citizens and residents of Italy, who, by their attorney-in-fact, instituted an action in trespass against the defendants in the Court of Common Pleas of Dauphin County, to No. 624, January Term, 1917, to recover damages for the death of their son, Gussippi Liberato, who was accidentally killed on Feb. 9, 1916, in this county, in the course of his employment with the defendants. In a case stated, this court decided that the plaintiffs were precluded from prosecuting their claim by an action in trespass, for the reason that neither the employee nor the employers filed the statement in writing provided in section 302 (a) of what is commonly known as the Workmen’s Compensation Act of June 2, 1915, P. L. 736, rejecting the provisions of article Til of the act applicable to their contract of hiring, and that, therefore, they were conclusively presumed to have accepted the provisions of the article and agreed to be bound thereby. After the passage of the Act of July 8, 1919, P. L. 764, being thereby authorized so to do, the claimants instituted proceedings before, and filed a claim with, the Workmen’s Compensation Board. The Travelers’ Insurance Company, the insurance carrier of the defendants, was granted leave to intervene as party defendant. The matter came on for hearing before the referee, from whose decision the claimants appealed to the Workmen’s Compensation Board, and on March 2, 1920, the board set aside the findings of fact and conclusions of law of the referee and allowed a hearing de novo, which was held forthwith, and the testimony as taken before the referee was adopted and considered by the board, and in the consideration of the case, two questions were raised: 1. Are the parents of the deceased, who are citizens and residents of Italy, entitled to compensation? 2. Is there sufficient testimony in the case to warrant the board to award compensation on the grounds of dependency? The board, in its opinion of Oct. 20, 1921, held that the testimony required that the second question should be answered affirmatively; it also held that the plaintiffs, the parents of the deceased, being citizens and residents of Italy, are not entitled to compensation, for the reason that section 310 of the Act of June 2, 1915, P. L. 736, bars them from receiving compensation. From this decision the plaintiffs have appealed to this court.

At the argument another question was suggested, viz., that of the constitutionality of the Act of July 8, 1919, P. L. 764. This, however, was then not pressed, and was dropped by the defendants, and we, therefore, will not give it any consideration.

It is for us to determine the question whether or not that part of section 310 of the Act of June 2, 1915, P. L. 736, which reads as follows, “Alien widowers, parents, brothers and sisters, not residents of the United States, shall not be entitled to compensation,” is contrary to the law of the land?

It is contended by the claimants, but the contention is denied by the defendants, that it contravenes the treaty between the United States and Italy, proclaimed Nov. 23, 1871 (17 Stat. at L. 845), which reads as follows: “The citizens of each of the high contracting parties shall receive in the states and territories of the other the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives on their submitting to the conditions imposed upon the natives,” which, as amended February, 1913 (228 Fed. Repr. 235), reads as follows: “The citizens of each of the high contracting parties shall receive in the states and territories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any state or national law which establishes a civil responsibility for injuries or for death caused by negligence or fault, and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs, and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter.”

The right of a dependent parent to recover compensation for the death of a child is purely statutory.

In the case of Maiorano v. Baltimore & Ohio R. R. Co., 216 Pa. 402, 407, the court said:

“At common law, the death of a human being could not be complained of as an injury in a civil court, and, therefore, could not be made the ground of an action for damages. While the statute allows such action at the suit of husband, widow, children or parents, the action is not for the enforcement of any right which was in the party killed, but for a wholly distinct cause not affecting in any way the estate or rights of such party; it is exclusively for such damages as the parties plaintiff in the action have sustained by reason of the death. As was said in Pennsylvania R. R. Co. v. Zebe, 33 Pa. 318, this latter is a new and independent right given by positive law — not cast upon the parties to whom the statute gives it by survivorship as for injury done the decedent, but is for the wrong done to them as individuals. The measure of damages allowed in such cases is but another expression of the same truth; the damages are limited to the pecuniary value of the life lost to those who sue, indicating clearly that the right to sue is not as though it came by succession as the right to recover what belonged to the party killed, but an independent cause of action for damages sustained by those who are allowed to bring the action.

“What we have said sufficiently indicates the difference between the rights of the plaintiff and those of her husband, and the ground upon which the distinction is based. -The injury for which plaintiff sues is her own peculiar injury resulting from the death of her husband, and not for injuries he received. A statute right is given our citizens in such case, but plaintiff, as we have seen, with respect to any such claim, is not within any treaty privileges, but is simply an alien. This being the ease, the doctrine of Deni v. Pennsylvania R. R. Co., 181 Pa. 525, applies.”

The plaintiffs must rely for their recovery upon the Act of June 2, 1915, P. L. 736, which is entitled “An act defining the liability of an employer to pay damages for injuries received by an employee in the course of employment; establishing an elective schedule of compensation, and providing procedure for the determination of liability and compensation thereunder.” In section 302 (a) it provides, inter alia, that “it shall be conclusively presumed that the parties have accepted the provisions of article ill of this act, and have agreed to be bound thereby, unless thereby, at the time of the making, renewal or extension of such contract, an express statement in writing from ' either party to the other that the provisions of article in of this act are not intended to apply, etc.” In this case there was no rejection of the provisions of article in by either the employer or the employee, and they are, therefore, conclusively presumed to have accepted the provisions of the article and agreed to be bound thereby.

In the ease of Liberato v. Royer & Herr, 28 Dist. R. 670, this court, by Kunkel, J., said: “The rights and remedies provided by the act are substituted for those previously existing, and the parties are limited thereto. See Gregutis v. Waclark Wire Works, 86 N. J. L. 610; Mathison v. Minn. St. Ry. Co., L. R. A., 1916, D, 412.” And in the same case this court said “his dependents are in the same position by express enactment in the event of his death,” and “under circumstances like those agreed upon in this case, citizen parents would be restricted to the remedy provided by the act, so also nonresident alien parents must be restricted likewise.”

The act provides in article ill, section 307, clause 7, that “If there be neither widow, widower nor children, then to the father and mother, or the survivor of them, if dependent to any extent upon the- employee for support at the time of his death, 20 per centum of wages;” and in the same section, clause 8, that “If there be neither widow, widower, children nor dependent parent, then to the brothers and sisters, if actually dependent to any extent upon the decedent for support at the time of his death, 15 per centum of wages for one brother or sister, and 5 per centum additional for each additional brother or sister, with a maximum of 25 per centum; such compensation to be paid to their guardian;” and by section 310: “Alien widowers, parents, brothers and sisters, not residents of the United States, shall not be entitled to any compensation.”

By the treaty with Italy, the relatives or heirs of the party injured by negligence or fault shall not be restricted on account of their foreign nationality, but shall enjoy in this respect the same rights and privileges as are enjoyed by our own citizens; they “shall receive in the states and territories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any state- or national law which established a civil responsibility for injuries or for death caused by negligence or fault, and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs, and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed in the latter.”

It is true the Workmen’s Compensation Act is not a statute providing for the payment of compensation for damages for any injury caused by negligence or fault only; it is a statute, as broad and comprehensive as it well might may be, providing for payment of damages resulting from an injury sustained during the course of employment in any manner, except such a one as is intentionálly self-inflicted; it not only covers those cases that are not resultant from negligence or fault, but it as well covers those cases that are caused by negligence or fault, which are the cases particularly cared for by, and embraced in, the treaty. It is quite within the realm of probability that the greater number of cases of injury are in the latter class. Under the terms of the statute, resident widowers, parents, brothers and sisters of the injured, under certain conditions, are entitled to compensation, yet nonresident alien widowers, parents, brothers and sisters of the injured, under the same conditions, are plainly excluded and are not entitled to any compensation. This is a limitation imposed by the statute upon certain classes of alien non-residents which is not imposed upon our own citizens of the same classes. The former, with respect to damages for injuries through negligence or fault, do not enjoy the same rights and privileges as are enjoyed by the latter, and yet the treaty provides in positive language that those of Italian nationality shall, in respect to civil responsibility for injuries or for death caused by negligence or fault, enjoy the same rights and privileges as our own people enjoy. The statute deprives the one class of a right which it grants to the other. To do this, we think, is such a discrimination as to amount to a clear violation of the treaty made between the United States and the Italian Governments. It is a violation of the supreme law of the land and cannot be sustained.

In the case of Maiorano v. Baltimore & Ohio R. R. Co., 213 U. S. 268, Mr. Justice Moody, in delivering the opinion, said: “We do not deem it necessary to consider the constitutional limits of the treaty-making power. A treaty within those limits, by the express words of the Constitution, is the supreme law of the land, binding alike national and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights.”

We have been referred to but two opinions rendered since 1913, when the amendment to the treaty was made, upon this subject, both having been delivered within Pennsylvania, nor have we been able to find any others. The one is the ease of Soiacono v. Labaty Brothers, 7 Dept. Reps. 901, in which the court held that this part of the Act of 1915 now under consideration is not in violation of the treaty. We have great respect for the learned judge who rendered this opinion, but apparently he declares that which he believes to be the law without giving any consideration to the amendment to the treaty. We do not concur in his opinion.

The other is the opinion of the then Attorney-General (Brown), who, on May 5, 1915, communicated it to the Secretary of State at Washington, D. C., reported in 24 Dist. R. 373, and 43 Pa. C. C. Reps. 205. The fallacy of this opinion, holding that this part of the Act of 1915 now under consideration is not a violation of the treaty with Italy, is that there is an admission therein of a substantial discrimination between the resident citizen and the alien non-resident (otherwise in the same class). The learned Attorney-General, among other things, says: “The proposed act provides for an elective system of compensation for injuries sustained. It denies to no one any subsisting rights; it merely provides a simpler, surer and more convenient method of enforcing those rights for those who elect to take advantage of its provisions, and it imposes certain limitations in exchange for benefits conferred, amongst which limitations is the denial of alien widowers, parents, brothers and sisters not residents of the United States of the right to receive compensation under the act.” He clearly points out a limitation which we think is a discrimination in violation and defiance of the treaty. He, furthermore, in the same paragraph, says: “And in respect of these persons, it may be said that it would be obviously unfair to impose on employers the obligation to conduct investigations in obscure parts of foreign countries to protect themselves from the claims of alleged dependent parents, brothers and sisters, who were not in fact in any way dependent, whereas, wives and minor children require no proof, as a rule, one way or the other.” This in effect amounts to depriving one of a right, because it may be difficult or inconvenient for the defendant to defend against the claim of such right. This may be such a reason that the amendment to the treaty was unwise, but it is no such reason which will justify the contravention of the treaty.

NOTE. — In Soiaeono v. Labaty Bros., cited above, Puller, J., said, as to the alleged conflict between the treaty and section 310 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736: “The treaty was made in 1871, long before the idea of compensation was even conceived and forty-four years before the enactment of the Pennsylvania statute. It contains nothing which can possibly be construed to contravene the provisions of our statute denying compensation to non-resident aliens.”

We are, therefore, of the opinion that the portion under discussion of the statute is violative of the treaty, as amended in 1913, between the Governments of Italy and the United States, and is unconstitutional.

The exceptions filed by the plaintiffs are sustained and the action of the board is reversed. The record, with this opinion, is directed to be remitted to the Workmen’s Compensation Board for further hearing, if necessary, and determination in accordance with the conclusion herein reached.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Reader, J.,

text:
    S. Ewart Company v. Carr.

      Justice of the peace — Appeals — Cause of action — Record of justice — Statement of claim- — Practice, C. P.

    1. Upon an appeal from the judgment of a justice of the peace the cause of action cannot be changed.
    2. In determining what the cause of action was before the justice, the Common Pleas is bound by the record of the justice.
    3. The Common Pleas will not hold that an account attached to the statement of claim presents a different cause of action than that appearing by the record of the justice, where the statement filed in court differed merely in the manner of stating tl;e plaintiff’s claim as presented to the justice.
    Appeal from justice of the peace. C. P. Beaver Co., Dec. T., 1921, No. 376.

      D. A. Nelson, for plaintiff; W. S. & Winfield S. Moore, Jr., for defendant.
    April 10, 1922.
   Reader, J.,

This case comes into court on an appeal from a judgment of David Stewart, justice of the peace. The plaintiff has filed its statement of claim in this court, and the defendant has filed an affidavit of defence in the nature of a demurrer, averring that the plaintiff’s statement is not sufficient in law. The ground alleged for this petition is that the cause of action stated in the statement of claim is different from that which was relied upon and tried before the justice.

It is well settled that upon an appeal from the judgment of a justice of the peace to the Court of Common Pleas, the cause of action cannot be changed: Wade v. Hook, 11 Pa. Superior Ct. 54; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476; Swain v. Brady, 19 Pa. Superior Ct. 459; Deihm v. Snell, 119 Pa. 316; Owen v. Shelhamer, 3 Binney, 45; Caldwell v. Thompson, 1 Rawle, 370; Bechtol v. Cobaugh, 10 S. & R. 121; Wright v. Guy, 10 S. & R. 227.

It is contended in this case that the account stated in the plaintiff’s statement of claim filed in this court is not the same account sued upon before the justice. An account is attached to the affidavit of defence which is claimed by the defendant to be that upon which suit was brought and tried before the justice. It is also stated by defendant’s counsel that counsel for plaintiff admitted, upon the argument, that this is true.

In determining what the cause of action was before the justice, this court is bound by the record of the justice. An examination of the transcript of the record of the justice, which is filed with the papers in the case, shows that the action is in assumpsit for an amount not exceeding $300. It also shows that on the trial plaintiff claimed a balance of $57.60 on an account for goods and merchandise sold to defendant, after allowing him all just credits. The statement of claim filed in this court sets out an account for goods and merchandise sold to defendant, credits on account thereof, and a balance due of $57.60. It is true the account set out in this statement contains many items not set out in the account attached to the affidavit of defence and alleged to be that sued upon before the justice. In the state of the record, the latter account is not properly before us at this time. Comparing it, however, with the account set out in the statement of claim, it appears that the latter contains all of the items stated in the former, together with many others. The latter seems to be a full and complete statement or account of the dealings between the parties, of which the account annexed to the affidavit of defence is but a partial statement. Even if the plaintiff were required to limit his statement to the items alleged to have been set out in the claim before the justice, it is quite possible that upon the trial it would be necessary to introduce in evidence all of the items in the book account as shown in the statement of claim filed in this court, in order to ascertain the state of accounts between the parties and determine their respective liabilities, it being apparent that both accounts relate to the same course of dealing.

At any rate, relying upon the record of the justice as showing the cause of action in the suit before him, it seems to us that the statement filed in this court is merely a different manner of stating the plaintiff’s claim, and does not introduce a new cause of action. This would not be a reason for defeating the action in this court or for holding the plaintiff’s statement to be defective or insufficient: Coffman v. Hampton, 2 W. & S. 377; Millar v. Criswell, 3 Pa. 449; Kraft et al. v. Gilchrist et al., 31 Pa. 470; Sprenger, for use, v. Lamparter, 22 Lanc. Law Rev. 230.

Now, to wit, April 10, 1922, the legal objection to plaintiff’s statement raised by the affidavit of defence is overruled, and defendant is required to file a supplemental affidavit of -defence to the averments of fact of the statement within fifteen days.

From P. H. Baird, Beaver, Pa.


author: Thompson, J.,

text:
    Crawford’s Estate.

      Widow’s exemption — Wife living under agreement of separation — Fiduciaries Act of June 7, 1917.

    A wife living at the time of the death of her husband apart from him under a written agreement of separation is not entitled to the ?S00 exemption allowed under section 12 (a) of the Fiduciaries Act of June 7, 1917, P. L. 417; the existence of the family relation is essential to the allowance of the exemption, except where its severance was the fault of the husband. Section 6 of the Intestate Act of June 7, 1917, P. L. 429, which expressly provides that a wife who has wilfully and maliciously deserted her husband for a period of one year before his death has no right to claim any interest in his property under that act, has no application to the construction of the above clause of the Fiduciaries Act.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1921, No. 634.

      Cecelia P. Bass, for exceptant; John B. McLean, Jr., contra.
    Jan. 6, 1922.
   Thompson, J.,

William Crawford died Dec. 31, 1920, intestate, leaving to survive him his widow, Anna S. Crawford, and one daughter, Mary E. Crawford. Anna S. Crawford filed her petition for the exemption of $500 allowed under section 12 (a) of the Fiduciaries Act of June 7, 1917, P. L. 447, to which an answer was filed by Mary E. Crawford, a daughter of the decedent by a prior marriage, setting up the fact that the petitioner had withdrawn from decedent’s home and had continued in such withdrawal for a period of three and one-half years prior to decedent’s death, and that, therefore, she was not a member of decedent’s household at the time of his death, said withdrawal being the result of a written agreement between decedent and petitioner to that effect. No replication seems to have been filed, and the petition and answer were submitted to the auditing judge upon the settlement of the accounts of the administratrix and claim made before him for said exemption. The auditing judge disallowed the claim of the petitioner on the ground that the family relation did not exist between her and the decedent at the time of his death, to which exceptions have been filed, and the same are now before us.

The petitioner claims that, notwithstanding her agreement with the decedent to live separate and apart from him, and in compliance therewith, she had so lived separate and apart from the decedent for a period of three and one-half years prior to his death, she is not deprived of her right to the $500 exemption allowed a widow under the Fiduciaries Act, for the reason that the Intestate Act of 1917 defines when a widow shall not participate in her husband’s estate, and that the petitioner does not come within the definition therein contained. Section 12 (a) of the Fiduciaries Act of 1917 provides in part as follows: “The widow, if any, or if there be no widow, or if she has forfeited her rights, then the children forming part of the family of any decedent dying, testate or intestate, within this Commonwealth, or dying outside of this Commonwealth, but whose estate is settled in this Commonwealth, may retain or claim either real or personal property, or the proceeds of either real or personal property, belonging to said estate, to the value of $500.”

Section 6 of the Intestate Act of June 7, 1917, P. L. 429, provides as follows: “No wife who shall have, for one year or upwards previous to the death of her husband, wilfully and maliciously deserted her husband shall have the right to claim any title or interest in his real or personal estate after his decease, under the provisions of this act.”

We cannot see any connection between the Fiduciaries Act of 1917 and the Intestate Act of 1917 in respect to the widow’s exemption. Prior to the Act of 1917, the existence of the family relation was essential to the allowance of the widow’s exemption, except, of course, where the severance of the family relation was the fault of the husband. The Intestate Act provides what interest a widow shall have in her husband’s estate, and it expressly provides, if she wilfully and maliciously desert her husband, she shall have no interest in his estate “under the provisions of this act.” The Fiduciaries Act gives her an additional $500, separate and distinct from her interest under the Intestate Act. Section 12 (a) of the Fiduciaries Act is founded upon section 5 of the Act of April 14, 1851, P. L. 612, as amended by the Act of July 21, 1913, P. L. 875, in respects not bearing upon the present question. The words “or if she has forfeited her rights” are not in the Act of 1851, and it is argued that they were inserted in the Fiduciaries Act of 1917 for the purpose of defining what was required to forfeit the widow’s right as set forth in section 6 of the Intestate Act of 1917. But, as we have seen, the manner of forfeiture set forth in the Intestate Act applies only to the widow’s interest under that act, whereas the framers of the Fiduciaries Act of 1917 wisely did not attempt to define what would forfeit the widow’s right to her exemption under the Fiduciaries Act. As the law stood at that time, the existence of a family relationship was essential to the allowance of the widow’s exemption. She could also be barred from her exemption by her laches in applying for the same, whereby rights of creditors became involved and expenses are incurred, or where distribution had been made. We do not mean by this that these are the only reasons which would prevent the widow from obtaining her exemption, but suggest them as indicating what the framers of the Fiduciaries Act must have had in mind when they drafted the same. That a difference between the rights of a widow to her exemption and her rights under the Intestate Act exists is clearly set forth in Post’s Estate, 27 Dist. R. 748, referred to by the auditing judge as being reported in 33 York Leg. Record, 11. It frequently happens that a widow is denied her exemption and yet is allowed to participate in the distribution of her husband’s estate: Rudolph’s Estate, October Term, 1920, No. 619. That a widow has been denied her exemption where the family relationship did not exist is shown by a reference to many cases: Post’s Estate, 27 Dist. R. 748; Wenger’s Estate, 27 Dist. R. 949; Creighton’s Estate, 7 Dist. R. 251; Welsh’s Estate, 5 Dist. R. 675; Scullin’s Estate, 5 Pa. C. C. Reps. 188; Henkel’s Estate, 13 Pa. Superior Ct. 337.

NOTE. — Rudolph’s Estate, October Term, 1920, No. 619, was not reported because it turned on special facts, and is of little or no value as a precedent. The case, however, is a good illustration of the distinction between the principles governing’ the right of a widow to participate in the distribution of her husband’s estate and her right to the widow’s exemption. In that case claim was made by I the ’ widow to take against the will and also for her exemption. The residuary legatee contested the right so to do on the ground that she had been living separate from her husband for twenty-three years preceding his death and had been guilty of desertion. There was no satisfactory evidence of the cause of the separation. The first auditing judge held that the separation being established, the inference arose therefrom that it was unwarranted and that she was guilty of desertion. The matter was subsequently referred back by the court in Txmc for further testimony to a second auditing judge, who held that desertion could not be inferred from the separation, and that she was, therefore, entitled to participate in the distribution though disentitled to her exemption. The court in Tumo sustained the latter award on the ground that the widow, having testified, without objection, that her husband told her to “get out” of the house, she could not be regarded as guilty of desertion under the authority of Olson v. Olson, 27 Pa. Superior Ct. 128. It is significant, however, that there was no question that under Post’s Estate, 27 Dist. R. 748, her claim to the widow’s exemption must be denied.

Counsel for the widow contends that Schreckengost’s Estate, 77 Pa. Superior Ct. 235, is an authority for sustaining their contention, but an examination thereof shows that all that case decided was that there is a presumption, by reason of the marital relation, that the widow is entitled to her exemption and her share in the decedent’s estate, which can be rebutted by showing that the family relationship was severed through no fault of her husband, and that she was not justified in leaving him. The opinion further shows that the allowance of the widow’s exemption and her share in her husband’s estate were given to her on the ground that she was justified under the evidence in leaving her husband.

We conclude that the petitioner did not occupy a family relationship to her husband at the time of the latter’s death, and that her claim for the $500 exemption was properly refused.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.


text:
    Miles Land Company v. Hudson Coal Company.

      Ejectment — Goal lands — Mesne profits — Eight to inspect mines — Practice, C. P.

    1. Where, in an action for coal lands, a claim is made for mesne profits derived from the previous mining of the coal by defendant, the plaintiff is entitled to the privilege of entering the mines for the purpose of inspection, if such inspection is necessary to ascertain the extent and amount of the mesne profits claimed.
    2. In such case the court will order that at a time to be agreed upon by the parties, or in default thereof to be fixed by the court, the plaintiff, by its proper ofiicers, agents and engineers, will be allowed to enter the mines and make such surveys and measurements as shall be deemed necessary for purposes of trial; such surveys and measurements to be made only under and according to the rules and regulations of the anthracite mine law.
    Motion for leave to inspect mines, etc. C. P. Lackawanna Co., May T., 1919, No. 452.

      Price, Price & Price, for plaintiff.

      J. H. Torrey, for defendant; R. W. Rymer, for Suffolk Coal Co., intervenor.
    Dec. 2, 1921.
   Newcomb, J.,

Ejectment for lands in the Borough of Moosic, coupled with claim for mesne profits. The land is underlaid with coal; active mining is alleged to have been in progress for years; the mining is the source of the profits sued for; and that accounts for the motion.

Plaintiff’s right of entry for the purpose of inspection, if any, is not defined by any authority to which attention has been called. The only rational ground for such relief must arise from the inherent nature of the subject-matter, viz., the fact that underground operations are not open to ordinary observation.

Yet so long as defendants are in peaceable possession, they are presumed to have the legal title, and as such to be immune from interference. Hence, the privilege can be countenanced only for reasons of practical necessity, in order to prevent a failure of justice. That is the ultimate basis underlying somewhat analogous forms of relief in equity. True, ejectment is in form a remedy at law; but, even so, in many aspects it is equitable in effect — indeed the most equitable legal proceeding known to the jurisprudence of this State. The law accords plaintiff the right to include his entire claim for damages with his action to recover the land. If inspection of the premises becomes necessary in order to ascertain the extent and amount of the damages, it would seem to follow that he ought to have the privilege of inspection; otherwise, the right to claim mesne profits in such case might be reduced to a mere empty formality.

But the right to examine defendants’ books, accounts, etc., etc., is also asked for. That is another thing. If needed in advance of trial, a bill for discovery is the only available means: Morris v. Samter, 22 Lacka. Jurist, 101.

So far as concerns inspection of the mines, the motion is allowed, and the rule to show cause is made absolute. That is to say, at a time to be agreed upon by the parties, or in default thereof to be appointed by the court, plaintiff, by its proper officers, agents and engineers, is allowed to enter the mines upon the premises in dispute and to make such surveys and measurements therein as shall be deemed necessary for purposes of trial. Such entry to be made under and according to the rules and regulations of the anthracite mine law.

So far as relates to defendants’ accounts and other documents mentioned in plaintiff’s petition, the rule is discharged.

From William A. Wilcox, Scranton, Pa.


author: Reno, J.,

text:
    Wolfe v. Best.

      Practice Act, 1915 — Plaintiff’s statement — Paragraphs—Material allegation — Written instrument — Copy attached.

    1. The Practice Act of May 14, 1915, P. L. 483, does not interdict the inclusion of a number of allegations in one paragraph, but the inclusion of more than one material allegation in the same paragraph.
    2. A “note,” without anything more, connotes a written instrument.
    3. A written instrument is “attached” to the pleading, within the- meaning of the act, by incorporating a copy of it in the text of the statement or by annexing a copy by way of an exhibit.
    Motion to strike off plaintiff’s statement. C. P. Lehigh Co., Jan. T., 1922, No. 80.

      Robert L. Stuart, for plaintiff; D. M. Garrahan, for defendant.
    March 20, 1922.
   Reno, J.,

There is no merit in the motion. It is true that the fourth paragraph does contain a number of allegations of fact. But the Practice Act of 1915 does not interdict the inclusion of a number of allegations in one paragraph. It is the inclusion of more than one material allegation in the same paragraph that is prohibited. The allegations of paragraph four, read together, are equivalent to one major material allegation, namely, that plaintiff is the holder in due course of the note described in the paragraph. Perhaps it would have been sufficient to have averred that and no more; but the addition to that material allegation of other allegations which modify, clarify, explain and amplify it does not constitute a violation of the act: Fuel Oil Co. v. Clarendon Refining Co., 29 Dist. R. 805.

The further objection concerning the failure to state whether or not the contract is in writing is obviausly untenable, in view of the allegation that the suit is based upon “a promissory note in writing.” Indeed, the word “note,” without anything more, connotes a written instrument. Having incorporated a copy of the note in the statement, it was unnecessary to attach another copy as an exhibit. A written instrument is “attached” to the pleading, within the meaning of the act, by incorporating a copy of it in the text of the statement or by annexing a copy to the statement by way of an exhibit.

Now, March 20, 1922, motion to strike off the statement is denied. Defendant will file affidavit of defence within fifteen days after service of copy of this order upon his counsel. From James L. Schaadt, Allentown, Pa.


author: Landis, P. J.,

text:
    Commonwealth v. Ebersole.

      Fraudulent Conversion Act of May 18, 1917 — Constitutional laio.

    The 3rd section of the Fraudulent Conversion Act of May 18, 1917, P. L. 241, is for the purpose of making it plain that none of the prior acts are repealed, and does not vitiate the provisions of the act itself.
    Indictment for fraudulent conversion. Demurrer and motion to quash. Q. S. Lancaster Co., Nov. Sess., 1921, No. 15.

      Harold G. Ripple and John M. Groff, for demurrer and motion.

      F. Lyman Windolph, F. S. Groff and William C. Rehm, District Attorney, contra.
    Dec. 24, 1921.
   Landis, P. J.,

The indictment in this case charges that the defendant, “having received and having in his possession an Overland sedan automobile, the property of Edward N. Myers, for the purpose of selling the same, did thereupon sell the said automobile to Guy Goehenauer for the sum of $200 in cash and a Ford sedan automobile to boot, which said proceeds of sale the said Edward N. Myers was entitled to receive and have,” and “did unlawfully and fraudulently withhold, convert and apply the proceeds of said sale to and for his own use and benefit.”

The Act of May 18, 1917, P. L. 241, is “An act making the fraudulent conversion of property, or the proceeds of property, a misdemeanor, prescribing the penalties therefor, and regulating the procedure therein.” The 1st section of it declares “that any person having received or having possession, in any capacity or by any means or manner whatever, of any money or property, of any kind whatsoever, of or belonging to any other person, firm or corporation, or which any other person, firm or corporation is entitled to receive and have, who fraudulently withholds, converts or applies the same, or any part thereof, or the proceeds or any part of the proceeds, derived from the sale or other disposition thereof, to and for his own use and benefit, or to and for the use and benefit of any other person, shall be guilty of a misdemeanor.” The 3rd section of the act provides that “it is the true intent and meaning of this act to define and punish a distinct and separate misdemeanor; and this act shall in no wise repeal or alter any statute relating to any felony or misdemeanor heretofore defined and punished by the laws of this Commonwealth.” While it is claimed by the defendant that this act is unconstitutional, no valid reasons are given for such a contention.

In Com. v. Spear, 73 Pa. Superior Ct. 205, it was held that “the basis of the crime” under it “was the fraudulent conversion of the property, and if such conversion took place subsequent to the passage of the act, a conviction will be sustained, even though the possession of the property was acquired prior to that time.”

Also, in Com. v. MacDonald, 74 Pa. Superior Ct. 357, where a defendant was tried “before the same jury upon two separate bills of indictment involving the same transaction, the first under the Act of March 31, 1860, P. L. 382, for converting and appropriating money of a corporation to his own use while acting as agent, and the second containing two counts, the first of which includes the allegation of agency, and the second, under the Act of May 18, 1917, P. L. 241, merely charging fraudulent conversion, and a general verdict of guilty on both counts is rendered,” it was held that the conviction should be sustained.

In Com. v. Altland, 30 Dist. R. 1078; 37 Lanc. Law Rev. 13, where a defendant had an account in a bank, and was there credited with a sum of money deposited by another, and refused to return the amount when notified, it was held by this court that he could he properly convicted under the Act of 1917.

We are of the opinion that there is no merit in the reasons filed. The 3rd section of the Act of 1917 is for the purpose of making it plain that none of the prior acts are repealed, but it does not vitiate the provisions of the act itself.

The demurrer is overruled and the motion to quash dismissed.

From George Ross Eshleman, Lancaster, Pa.