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car to the former, to secure the repay- the Commonwealth, and cannot prevent ment of said sum, six months after date, the Commonwealth from enforcing a with interest. The possession of the forfeiture incurred by the acts of the mortgaged car was retained by the mort- owner in possession. gagor, as owner, and the mortgagee was The only remaining question is whethnot to have a right to take possession un-er, under the provisions of clause (III) less and until some default of the mort- of subdivision (B) of section II, an orgagor, or one or more of certain other der can and should be made for the payevents (including removal "from the ment of the amount owing upon the county, or where now located," "misuse" and seizure by process of law) should mortgage out of the proceeds of the sale. That clause provides for such payment occur, or the mortgagor should deterof the amount owing upon a "bailment mine it to be necessary to take posses- lease or contract." It is claimed that the sion "for the more complete and perfect mortgage debt owing in this case should security of said claim." Prior to the be treated as analogous to, and as being seizure of the car no default in payment had occurred, and the mortgagee had upon the same footing as, the moneys not elected to take possession "for more sion referred to is, as we said in Comowing upon such a contract. The provicomplete and perfect security." The monwealth v. Cutshall, supra, a saving making of a trip with the car into Penn- clause for the protection of rights which sylvania was not a "removal" within the would otherwise be destroyed by an inmeaning of the provision on that subject, would otherwise be destroyed by an inrem forfeiture decree. While it may be which manifestly was not intended to prevent temporary absences from the proper to interpret it with some measure of liberality for the purpose of protectplace where it was kept, in the use of ing the rights of innocent parties, it is the car for travel in the ordinary way; but referred to such a removal as would not admissible, in its interpretation, to be analogous to a change of residence on tions of the granting of the relief, and reject any expressly prescribed condithe part of a person. If the word "mis- tions of the granting of the relief, and the part of a person. If the word "mis- thus to apply the provision to a case use" be construed as including any unlawful use, and if it be therefore con- the meaning and scope of the language which is plainly and clearly outside of shall made of the car while in Pennsyl-clause (III), the person to whom it gives By the explicit provisions of vania, gave the mortgagee a contract right to take possession, it must also be relief must be a "bailor," having "the said that this same unlawful use vested legal title," who was out of possession a statutory right of possession in the at the time of the seizure because the Commonwealth, which must prevail: property was held "under a bailment Commonwealth v. One Columbia Auto- lease or contract." By no possible inmobile, opinion this day filed. Claim- terpretation can the case of this claimant's petition, however, does not assert a right of possession upon any other ground than that of "seizure by process

sidered that the unlawful use which Cut

of law." The effect of the seizure for

violation of the law has already been mentioned, and was ruled on in Commonwealth v. Cutshall, 4 Wash. Co. R. 7. We reaffirm the views expressed in the case just cited, and hold that the claimant, not having any ownership, and being a mere mortgagee out of possession, does not come within the class of claimants who under the provisions of subdivision (D), Sec. 11, of the Act of March 27, 1923, P. L. 34, are entitled to take the possession of a seized car from


ant be brought within that language. He does not have the legal title; he is a mere mortgagee. He is not a bailor; he never made a bailment to Cutshall. Cutshall held possession, not under a bailment lease or contract, but as the legal owner of the car. To hold that claimant is entitled to an award under clause (III) would be judicial legislation, and not a declaration and enforcement of the law which the legislature has made.

And now, March 17, 1924, it having been made to appear upon the hearing, and being now found as a fact, that the Dodge automobile described in the petition of the district attorney has been

used for the unlawful transportation of follows: "I this day give and bequeath intoxicating liquor within the State of to my beloved, Sidney E. Griffith, all the Pennsylvania, in the County of Wash- personal property and real estate I posington, in violation of the provisions of sess at my death as long as she remains the Act of Assembly approved March my widow; she shall pay all just claims 27, 1923, Pamphlet Laws of 1923, page that I owe. I appoint her sole execu34, the same is condemned and adjudged trix." to be forfeited to the Commonwealth, and it is ordered and decreed that the sheriff of the said county do expose the said automobile to public sale, after notice as provided in the Act of Assembly aforesaid, and make public sale thereof and pay the proceeds of such sale to the county treasurer as provided in said Act. And the claim presented by Sparks B. McCauslen is hereby dismissed.

O. C. of

The Sidney E. Griffith named in his will was his wife. She died on the 21st day of January, 1918. Sidney E. Griffith died without having again married. The officer representing the Commonwealth of Pennsylvania appraised the real estate hereinbefore referred to as being owned in fee simple by Sidney E. Griffith at the time of her death, under the terms of the will of her husband, J. J. Griffith. Covode Griffith, executor of Sidney E. Griffith's estate, appealed from the appraisement for transfer inheritance Somerset Co. tax by the commonwealth, contending that Sidney E. Griffith was vested with

Estate of Sidney E. Griffith, deceased

Inheritance tax-Will--Defeasible estate in fee simple-Remarriage of widow -Which estate liable for payment?

By virtue of a provision of a will as follows: "I this day give and bequeath to my beloved wife Sidney E. Griffith, all the per

sonal property and real estate I possess at my death as long as she remains my widow; she shall pay all just claims that I owe. I

appoint her sole executrix."

The will gives to the widow a defeasible

estate and in case of death without re-marriage an estate in fee simply; the widow having been devised an estate which ripened

into a title in fee simple, the same is therefore liable for the transfer inheritance tax.

Appeal from transfer inheritance tax assessment on real estate of decedent.

Daryle R. Heckman, for Commonwealth of Pennsylvania.

E. E. Kiernan, for estate.

Berkey, P. J., June 7th, 1924.-J. J. Griffith was seized in fee of a twentyfive acre tract of land situate in Jenner Township, Somerset County, and being so seized January 21, 1898, made his last will and testament which reads as

a life estate only by the will of her hus

band, and therefore her estate in said land having died with her, her estate is not subject to the transfer inheritance tax.

This contention raises the question as to what estate was devised to her by her husband, under the facts, following his death. I am of opinion the will gave her a defeasible estate, and in the event that she remarried an absolute estate would have been defeated; but in as much as her remarriage never having happened, she became seized of a fee simple estate in all the real property of which her husband died seized. Upon her death the defeasible estate vested in her by the will of her husband became absolutely an estate in fee simple, and the estate descends to her legal heirs;

that the estate is not vested in her heirs

by virtue of the will of the husband:
Scott v.
v. Murray, 218 Pa., 186-187;
Fidelity Trust Company v. Boblosky,
228 Pa., 52; McCall v. Umbenhauer,
270 Pa., 351.

Her estate is therefore liable for the transfer inheritance tax.

The appeal by the executor of Sidney E. Griffith dismissed at the costs of her estate.

Q. S. of

Northampton Co
Commonwealth v. Wilson


stand just what is meant, but assuming that the juror was prejudiced against the defendant prior to the trial, that fact is not sufficient to entitle him to a new

New trial-Impeachment of verdict trial. The defendant should know whom

After-discovered evidence-Intoxication of juror-Record of conviction.

It is never permitted to impeach a verdict

by the declarations of a juror as to what happened in the jury-room, or as to what influenced him.

Where a juror becomes intoxicated upon the trial, and from time to time goes to sleep, it is the duty of counsel to bring the matter to the attention of the court at once.

The trial of a case is under the inspection

of the court, and unless the court personally notices a juror's condition, or has it brought to its attention during a trial, allegations that the juror was intoxicated or asleep will not be considered, especially where the court has a distinct recollection that the

juror was neither intoxicated nor asleep.

A witness may be asked, when on the

stand, upon cross-examination, whether he had been convicted of a crime or not, for the

purpose of affecting his credibility, or the other side may introduce the record that he has been convicted of a crime, without interrogating the witness upon the subject.

Motion for new trial. Refused.

Charles P. Maxwell, assistant district attorney, for Commonwealth.

the jurors are before trial, and the law has given him a liberal number of peremptory challenges, and he is entitled to shown. The juror was sworn to try the any number of challenges for cause case according to the law and the evidence, and the verdict of twelve men is never set aside, even if it should be proven that one of them, after the trial, had made prejudicial declarations against the defendant. From Lessee of Cluggage v. Swan, 4 Binney, 150, to the late case of Groner v. Knights of Maccabees, 265 Pa. 129, it has been uniformly held that verdicts are not set aside by testimony of the jurors as to what transpired in the jury-room, or impeached by remarks of individual jurors after verdict.

The fifth and sixth reasons are based upon after-discovered witnesses, and a large number of affidavits are attached to the petition. In Com. v. Roddy, 184 Pa. 274, it was held: "The refusal of a motion for a new trial is an error in law only where it is apparent that such re

Frank P. McCluskey and Smith, Paff fusal amounts to a clear abuse of discre& Laub, for defendant.

tion." To the same effect is Com. v. Stewart, P. J., Oct. 8, 1923.—These Ezell, 212 Pa. 293. In Com. v. Flanaare motions for a new trial and in arrest gan, 7 W. & S. 415, on page 423, Mr. of judgment. The first and second rea- Justice Rogers said: "Granting new sons are that the verdict was against the trials does not depend upon the whim or law and the evidence. No specific error caprice of the judge, but upon well-esin the charge has been called to our at- tablished and fundamental principles of tention, and we are entirely satisfied with law. In the trial of issues of fact, the the verdict. The case was well fought, court judges of the competency, the jury and every consideration was presented of the effect, of testimony. But after to the jury by the learned counsel for the verdict when the motion for a new the defendant, but the jury found that trial is considered, the court must judge, the defendant was guilty, and that should not only of the competency, but of the end the case unless the trial has not been effect of evidence. If, with the newlyconducted according to law. The third discovered evidence before them, the reason is as follows: "That since the jury ought not to come to the same converdict has been rendered in the above clusion, then a new trial may be granted; case, counsel for the defendant has otherwise they are bound to refuse the learned that one of the jurymen, Wallace application. And in Lessee of Ludlow's Bloom, boasted of the fact to one Walter Heirs v. Parker, 4-Hamm. (Ohio Reps.) Trumbauer that he, the said Wallace 5, it is ruled that, in considering the Bloom, was able to show Wilson how motion, the court will not inquire whethmuch of a friend he was to him, evidenc- er, taking the newly-discovered testimony ing that the jury was prejudiced against in connection with that exhibited on the the defendant." It is difficult to under- trial, a jury might be induced to give a

different verdict, but whether the legitimate effect of such evidence would require a different verdict." The rule with reference to granting a new trial is the same in civil as in criminal cases. Where the application is based upon after-discovered testimony, the rules that control the court in considering such applications are: "I. The evidence must not be merely cumulative. 2. It must relate to the merits and not to discredit or impeach witnesses. 3. It must have been discovered since the prior trial, and be such that by reasonable diligence it could not then have been produced. 4. It must be of that character which not only might produce a different result, but the legitimate effect of which would require a verdict for the other party." Neither the reasons nor the affidavits in this case come within above rules.


brought into court by the sheriff.
saw nothing to lead us to think he was
intoxicated when he was brought into
court, and he was directed to take his
seat in the box. Immediately after he
took his seat, counsel for the defendant
asked that the juror be sent from the
room, and that a juror be withdrawn
for the matters set forth in the thir-
teenth reason. We immediately afforded
counsel an opportunity to prove their al-
legations, and, as the record will show,
they completely failed. The trial pro-
ceeded on Monday and Tuesday. After
the verdict had been rendered, we called
the juror before us and examined him,
and particularly asked him whether he
had not been drinking on Sunday. He
denied the fact, and he was then fined,
not for intoxication, but for delaying the
court. It would have been highly im-
proper to have examined the juror as to
his absence when he was brought into
court, and to have inflicted a fine upon
him while discharging his duties. As we
said before, there was no visible evidence
of intoxication. If the defendant's coun-
sel noticed anything, it should have been
at once brought to the attention of the
court. It cannot be presumed that the
sheriff would not have informed the
court if the juror had been intoxicated,
and the watch which we uniformly keep
on the jurors would have disclosed to us
if the juror had been asleep. In a simi-
lar case, Com. v. Jongrass, 181 Pa. 172,
the Supreme Court said: "The other
question relates to the refusal of the
court below to set aside the verdict be-
cause it was alleged that one of the jur-

The seventh reason is as follows: "That since the verdict has been rendered, the defendant has learned that one of the jurors, Martin, was intoxicated. That the physical condition of the juror was such by reason of his intoxication that at the time he was placed back in the jury-box he was unable to give his strict attention to the testimony given, and that the juror on several occasions during the trial dozed off to sleep while testimony was being taken." This reason should be considered in connection with the thirteenth reason which is as follows: "The court erred in refusing the motion of counsel to withdraw a juror after the juror had been brought into court on an attachment, when it was disclosed that he was brought here to the court in a closed automobile by the sher-ors had for an instant appeared to be iff and two prominent witnesses for the asleep. This motion was addressed to Commonwealth, one of whom was an the discretion of the court. It depended investigator in this case and displayed a upon a fact that must have transpired in biased interest in the conviction of the the presence of the learned judge. If defendant, both before, at and since the this assignment was regular, we could trial, and the other of whom, at the time not consider it upon this record. The he was on the witness-stand, showed learned judge stated, when this motion that he was hostile to the defendant and was before him, that he had given partiother parties whose names were connect- cular attention to this juryman during ed with the case." This case was called the trial because of his age, and was for trial on Friday morning. Trial was able to say upon his own knowledge that continued the next day. Adjournment he was awake and attentive except for a was had over Sunday. On Monday single instant, and that he lost nothing morning the juror referred to did not of the trial. It was idle to call witnesses answer at the opening of court. An at- to prove what the learned judge knew to He would not have been tachment was issued for him, and he was be untrue.


Philadelphia Co.

Wetter v. Smith

Husband and wife - Automobiles


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Practice Act of May 14, 1915.


bound by such testimony if given, for C. P. of neither a judge nor a juror is bound to accept the statement of a witness that contradicts the testimony of his own senses." In Houpt v. Hendler, 2 Kulp, 400, there is a good discussion upon the failure of counsel to object to a juror Collision who may have indulged in the use of intoxicants during the trial. The mere wife's agency as driver-Admissionfact that a juror does not appear should be notice to all parties to learn the cause of his non-appearance, and if that cause incapacitated him at the time he resumed his jury duty, it should be promptly brought to the attention of the court; otherwise, a defendant cannot take the chances of a verdict in his favor and raise the question on a motion for a new trial. See McCorkle v. Binns, 5 Binney, 340; Eakman v. Sheaffer, 48 Pa. 176; Com. v. Razmus, 210 Pa. 609, and Com. v. Beard, 48 Pa. Superior Ct. 319.

The ninth, tenth, eleventh and twelfth reasons are as to the introduction by the Commonwealth in rebuttal of the record of the conviction of defendant's witness

for larceny and burglary. The objection is made that the witness was not asked, when upon the stand, whether he had been convicted or not, and that not having been asked, the Commonwealth could not offer the record of his conviction in rebuttal. This was not the case of a defendant, and we are not interested in the variety of decision that arose after Buck v. Com., 107 Pa. 486, was decided, but in Com. v. Racco, 225 Pa. 113, it was held that a witness may be asked whether he had not been convicted of a crime, but it was said that the record was the best evidence. The fact can be shown

either way; by asking the witness him

The mere relation of husband and wife

does not make the wife the husband's agent. damages to an automobile caused in a colliIn an action of trespass to recover for sion with another automobile owned by defendant, an averment in the statement of above named defendant, at said time and claim "that said automobile belonging to the place was being operated with the knowlabove named defendant, by his wife," is an edge, consent, approval and sanction of the insufficient averment of her agency, and, if no other evidence is offered at the trial as to her authority, or whether the car was engaged in the defendant's business at the time of the accident, the defendant will be binding instructions, notwith

entitled to

standing the fact that he did not file an
affidavit operated as
affidavit of defense; the failure to file the
section 13 of the Practice Act of May 14,
an admission under

1915, P. L. 483, but, owing to the insuffici-
defendant no harm.
ency of the averment, the admission did the

Motion for judgment n. o. v.

F. Carroll Fow, for plaintiff.
B. J. O'Connell, for defendant.


This was an action in trespass to reShoemaker, P. J., February 14, 1924. caused by negligence. cover for damages to an automobile,

By the fourth paragraph of the statement of claim it was averred: "That said defendant, at said time and place, was automobile, belonging to the above named self, and if he admits it, that ends it; if he denies it, by putting the record in; or sent, approval and sanction of the abovebeing operated with the knowledge, conthe Commonwealth can introduce it sub-named defendant, by his wife." No afthe Commonwealth can introduce it sub- sent, approval and sanction of the abovesequently, as was done in this case in re-fidavit of defence was filed. buttal. See, also, Com. v. Auerbach, 71 Pa. Superior Ct. 54. We see no reason. why the testimony of Mr. Seifert should not have been received in rebuttal. At the most it amounted to little, but it did have some bearing on the location of the Excelsior store.

And now, Oct. 8, 1923, motion for a new trial is refused, and motion in arrest of judgment is denied.

of May 14, 1915, P. L. 483, provides: The 13th section of the Practice Act. "In actions of trespass, the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accord

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