report of the re-viewers were dismissed be wholly lost sight of: Road in Lower and the report adverse to the road con- Merion, 58 Pa. St. 66. firmed absolutely;

August 31, 1925, the report of John W. Heller and John D. Jenkins, two of the re-re-viewers, who had been appointed January 7, 1925, in favor of the road, was filed;

October 22, 1925, exceptions on behalf of John Miller were filed to the report of the re-re-viewers, which are the ones now under consideration.

The first and second exceptions attack the report on the ground that because at the same time that these re-re-viewers were appointed, January 7, 1925, exceptions to the previous report of the reviewers were filed and were undisposed of, which exceptions were dismissed, and the report of the re-viewers against the road was confirmed absolutely March 16, 1925.

The 4th and 5th exceptions do not seem to be substantial.

The 6th exception, that the proceedings in this case are irregular and illegal and should be set aside, is sustained. Two reports in favor of the road were signed by only two of the three viewers appointed.

The report in No. 2, April Sessions, 1924, was concurred in by all of the viewers.

This is of some weight, in addition to the other considerations, moving the court to adopt the report adverse to the road.

And now, to wit: April 16, 1926: The first, second, third and sixth exceptions filed are sustained, and the proceedings under the appointment of re-re-viewers January 7, 1925, No. 6, January SesThe argument is that the appointment sions, 1925, are set aside; and the report of the re-re-viewers on January 7, 1925, of the re-viewers in No. 2, April Seswas irregularly made before the excep- sions, 1924, filed October 27, 1924, and tions to the previous proceedings had confirmed absolutely March 16, 1925, is been disposed of; and that the subse- adopted and confirmed.

quent dismissal of the exceptions to the

Luzerne Co.

Goldberg v. Chernin, et ux.

report of the re-viewers, and the con- c. P. of
firmation of the report against the road
was in effect a refusal of the petition for
a re-re-view, and made any subsequent
action of the re-re-viewers of no effect.

Plaintiff's statement-Requirements in

Hellertown action for breach of contract to sell land.

A plaintiff's statement in an action to re

This contention seems reasonable and is supported by the cases cited by counsel for the exceptant: Road, 5 W. & S. 202-204; Greenwood Township Road, 27 Pa. Sup. 549-551. cover down money and damages for breach The third exception is to the variance between the order and the report of the re-re-viewers.

The petition and order of re-re-view specifies a terminus at a point 3.800 feet distant from the intersection of Vinegar Ferry Road with the public road leading from York to Kreutz Creek Church; whereas the road reported by the re-reviewers ends at a point 3,968 feet distant from that intersection.

This variance is so substantial as to compel the sustaining of this objection.

For the viewers to go beyond the termini fixed by the order is to exceed their authority. If they can go beyond one terminus they may disregard the other. If they can extend the view to a different outlet the project presented by the petition and approved by the court may

of a contract to sell land which did not aver

whether the demand for the deed was oral

or in writing, nor the nature of the tender

of payment, nor whether the notice to rescind
was oral or in writing and in which the
damages claimed were given in a lump item
was not
without specifying their nature.
judgment.
sufficiently specific to entitle plaintiff to

Affidavit of defense raising question of law.

Charles M. Bowman, for plaintiff. Edwin H. Sheporwich, for defendant. Jones, J., September, 1925.-Suit in assumpsit to recover two hundred dollars down payment on a contract for the sale of a lot of land and two hundred dollars damages.

Defendant files an affidavit of defense purporting to raise a question of law, but averring insufficient statement.

In Rhodes v. Terheyden, et al., 272 of sub-contractors' claims in a mechanics' coming insolvent, the sub-contractors entered lien proceeding, where the contractor betheir claims against the owner, it was held that the owner

was liable for the claims even when in the aggregate they exceeded the contract price.

Pa. 397, the court said: "If appellee was of opinion the averment of the statement did not 'conform to the provisions' of the Practice Act * * * he should have moved to strike it off, as provided by Section 21. If he believed it did 'conform to the provisions' of the act, but was not sufficiently specific, he should have taken a rule for a more specific statement and followed this with a moment with the contractor furnishes labor or tion for a non pros, if the court made his rule absolute and its order was not complied with."

This practice was not observed by the

defendant.

The Mechanics' Lien Act of 1901 (June 4, P. L. 431) following former acts provides that every structure shall be subject to a lien for the payment of all debts due to the contractor or sub-contractor in the erection tractor is defined to be one who by agree

and construction thereof, and the sub-con

supplies reasonably necessary for and actually used in the building. There is no suggestion in any of the acts that the debt due a sub-contractor is to be in any way

measured by the debt due the contractor.

Sur mechanics' lien.

A. C. Christiansen, for plaintiff. Leonard M. Boehm, for defendants. Shafer, P. J., February 3, 1926.-On April 18, 1925, a stipulation of counsel and agreement as to facts was filed at No. 179, April Term, 1925, Mechanics' Lien Docket, the mechanic's lien in that case being one in which Frank Bryan case being one in which Frank Bryan was plaintiff and Antonio Stemkowski, et al., were defendants. This stipulation and agreement was entered into by Frank Bryan, plaintiff in this mechanic's

The Practice Act provides that a statement shall contain in a concise and summary form all the material facts on which the party pleading relies for his claim; this statement is insufficient; it fails to aver whether the demand for a good and sufficient deed was oral or in writing and the nature of the tender claimed to have been made, also whether the notice to rescind was oral or in writing, also a lump item of two hundred dollars for expense money claimed by plaintiff in an effort to obtain the premises, without specifying the nature of the lien, and a number of other persons services or the expenses.

Where a doubt exists as to whether or not summary judgment should be entered, it should be resolved in favor of refusing to enter it.

This statement is not sufficiently specific to entitle plaintiff to judgment; de

ic's liens against the property in queshaving rights at that time to file mechantion, and by Antonio Stempkowski and wife, owners of the property, and it shows that William Cominiak had entered into an agreement to build a house for Antonio Stempkowski and wife for fendant's affidavit does not raise a question of law; he should have taken a rule $10,150.00, that Cominiak had proceeded to erect the house and employed as subfor a more specific statement. We would suggest that plaintiff file a parties to the contract, who have mecontractors Frank Bryan and the other more specific statement as herein indi-parties to the contract, who have mechanics' claims in various sums, as set cated and that defendant be required to out in the contract. It further shows file an affidavit of defense in accordance that the mechanic's lien claims of these with the law. parties, amounted to $10,184.09 and that the owner had paid to Cominiak $2,000.00, leaving the sum owing by the owner to the contractor $8,150.00. It further appears that although Cominiak was reputed among all parties to be solvent and responsible, that he has since. become hopelessly insolvent, and it is agreed that Frank Bryan and the other

C. P. of

Allegheny Co.

Bryan v. Cominiak, et al.

Mechanics' lien-Insolvent contractor -Claims of sub-contractors-Liability of owner for amounts exceeding contract price-Act of 1901.

mechanic lien claimants mentioned in the contract furnished materials or labor, or both, in and about the erection of the defendant's building in accordance with nature of a case stated involving a number the plans and specifications, and that the

On an agreed statement of facts in the

prices charged are fair and reasonable, specifically decided in this Commonand that they have a right to a lien upon wealth, and in this statement they apthe building accordingly, setting out the pear to be right. This is somewhat curamounts to which each of the defendant's claimants are entitled, and it is further ious when we observe the fact that the shown that the $2,000.00 paid to the con- text writers on mechanic's liens are actractor by the owner was all paid on ac- customed to designate the system of mecount of the claims of some of the mechanic's liens under which the sub-conchanic lien claimants above named, or to tractor is entitled to a lien for what he workmen for wages on the building.

Upon this state of facts the mechanic's lien claimants claim that they are entitled to mechanic's liens upon the property for the full amount of the claims, notwithstanding the aggregate of the mechanic's liens claims exceeds the contract price, and the owners contend that they are not bound to pay the mechanic's lien creditors any sum in excess of what they still owe to the general contractor, namely amount due them, regardless of the con$8,150.00, and this agreement was that the court should distribute or determine how much each of the mechanic's lien creditors was entitled to receive from the

Joseph B. Wissler, district attorney,

ditions he may bind the building for
what his materials and labor may be contra.
reasonably worth."

In view of the universal understanding of the profession and of the cases which have been referred to, we are clearly of opinion that in this case the plaintiff is entitled to recover the whole amount of his lien, notwithstanding the fact that his lien and those of the other lien creditors aggregate more than the amonnt owing by the owner to the contractor.

Landis, P. J., January 16, 1926. The indictment in this case charges that the defendants "did unlawfully, falsely and maliciously conspire, combine, confederate and agree that the said Wilfred Carroll should do an unlawful act to the prejudice of Charles A. Brown, Estella Brown and Alice Carroll, in that he, the It is agreed by the parties that if the said Wilfred Carroll, then and there. court shall be of the opinion that the being married to the said Alice Carroll, plaintiff is entitled to his whole claim, judgment shall be entered for the plain- should commit adultery with the said tiff for $335.40, the balance of his claim Estella Brown, minor daughter of the having been otherwise arranged for, and said Charles A. Brown, to the end that if not, that judgment shall be entered for thereupon a separation and divorce could the defendant with reservatioa of a right be obtained by the said Alice Carroll of appeal. from the said Wilfred Carroll, and Being of opinion, as stated, that the thereupon the said Christ Hildebrand plaintiff is entitled to recover the whole of his claim, notwithstanding the terms of the contract between the owner and the contractor, judgment must be entered for the plaintiff.

And now, February 3rd, 1926, it is ordered that judgment be entered herein for the plaintiff in the sum of $335.40.

could marry the said Alice Carroll; and then and there in execution of the said last mentioned premises and in pursuance of the said conspiracy, combination and agreement between and amongst them as aforesaid, the said Wilfred Carroll did commit adultery and statutory rape on and with the said Estella Brown." To this indictment a demurrer has been filed, which alleges that no sufficient offense is charged under the laws of the Commonwealth, and that the indictment shows on its face that all the parties named therein were parties to the alleged conspiracy and their consent or concerted action was necessary thereto.

Criminal law-Conspiracy-Adultery If Wilfred Carroll committed the crimes of adultery and statutory rape, he -Statutory rape-Indictment-Demur- can be indicted and tried for those of

rer.

fenses. But the charge laid in this indictment is conspiracy, and in Shannon

There is no such an offense as a conspiracy and Nugent v. Commonwealth, 14 Pa.

to commit adultery or statutory rape.

226, it has been decided that there is no There can be no indictment for conspiracy to commit a crime where the concerted action such offense as a conspiracy between a of the defendants is part of the criminal act. man and a woman to commit adultery. An indictment for conspiracy against A. As statutory rape arises out of the same and B. which charges that they conspired and agreed that A. would commit adultery act, the same result would seem to folwith C., a minor, in order that a divorce low. Gibson, C. J., there said: "The could be obtained by A's wife, whom B. could sum of the charge is joint consent, which mit adultery and statutory rape with C., will is an ingredient in every fornication or adultery, and if it were separately a subDemurrer to indictment for conspir- stantive offense, parties acquitted of acconspir-tual connection might be put on trial for acy. Sustained.

then marry, and that A. did thereupon com

be set aside on demurrer.

what would be in morals a lower degree

G. T. Hambright and John E. Malone, of the same transgression. The statute for demurrer.

which made it a temporal offense con

tains no provision for splitting it into de- O. C. of

grees, like homicide, to give the prosecution of it more than a single chance of success. If consent to an adultery be a

lower degree of temporal crime, why

Erie Co.

Estate of Elijah Drury

Decedents' estates. - Devise

Charge

might not the parties to it be found guilty upon land-Jurisdiction of the orphans'

court.

of it on an indictment for actual con-
nection? Because it may be said con-
federacy is an offense of a different
stamp. It is so in form, but not in sub-
stance, else an adultery or a fornication
consummated would consist of distinct
and different crimes. But to call the
thing by different names would not en-
able the attorney general to put the par-
ties twice in jeopardy for it." In Smith
v. Commonwealth, 54 Pa. 209, it was held
that "it is not indictable to solicit, incite
and endeavor to persuade a married land. Petition granted.
woman to commit fornication or adul-
tery"; and in Commonwealth v. Bricker,
74 Pa. Superior Ct. 234, that "there can
be no indictment for conspiracy to com-
mit a crime where the concerted action

The orphans' court has jurisdiction to or

der that a legacy be charged upon land.

If a payment or payments are to be made as a condition on which a devisee accepts land, then it is chargeable upon the land devised.

the repairs, improvements and upkeep of a A devise providing annual payments for cemetery for all time to come, does not offend against or voilate the rule against perpetui

ties.

Petition to have legacies charged upon

George M. Mason, for petitioner.

S. Y. Rossiter, for respondent. Clark, P. J., January 26, 1926.—Elijah of the defendants is part of the criminal Drury executed his will December 9, act." Now, this alleged crime was not 1879, and died July 25, 1880. On Janudirected towards John A. Brown or Alice Carroll, but was solely between Wilfred Carroll and Estella Brown, and for this an indictment for conspiracy does not

lie.

In addition, it is alleged that, upon the commission of the offense between

Wilfred Carroll and Estella Brown, a separation and divorce could be obtained by Alice Carroll, and thereupon the said Christ Hildebrand could marry her. All this is purely suppositious, for there is no pretense on the face of this record

ary 13, 1908, Frank Smith was ap-
pointed trustee by the orphans' court of
Erie County, Pennsylvania, to carry out
the provisions of the will of Elijah
Drury, as appears in No. 102, Novem-
Erie County, Pennsylvania.
ber Term, 1907, in the orphans' court of

tioned the court, reciting a part of the
The said Frank Smith, trustee, peti-
will of the aforesaid Elijah Drury, as

follows:

"I give and bequeath unto my son, O. P. Drury, the homestead on which I now that Alice Carroll obtained a divorce reside, containing about one hundred and from her husband, nor that Christ Hil-sixty acres of land, more or less, situate debrand afterwards married her. But in Girard township aforesaid, with the even if he did, it would not render them understanding and condition that he shall indictable for conspiracy. If Hildebrand pay to the trustees of the Universalist Church, of Girard, aforesaid, the sum of twenty-five dollars per year for and not, for so doing, be liable for conspir- during the term that such church shall be conspir-used and occupied for church purposes acy, the main offense being merely a misdemeanor. This alone is not an attempt twenty-five dollars per year for repairs and also that he shall pay out the sum of to commit a misdemeanor and cannot un- and improvements in my family burying ground for all time to come."

went so far as to advise Carroll to have connection with Estella Brown, he would

der the law be so construed.

On the whole, I do not think the indictment is good in law, and for this reason the demurrer is sustained and the indictment is quashed.

Demurrer sustained.

The petition contained a description of the burying ground and also states, inter alia, that O. P. Drury died June 6, 1905, and H. H. Nichols, administrator d. b. n. c. t. a., of the estate of O. P. Drury, sold