a 31 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 not to have a right to take possession un The only remaining question is whethless and until some default of the mort- of subdivision (B) of section 11, an or er, under the provisions of clause (III) gagor, 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 determine it to be necessary to take posses, lease or contract.” It is claimed that the of the amount owing upon a “bailment sion "for the more complete and perfect mortgage debt owing in this case should security of said claim." Prior to the seizure of the car no default in be treated as analogous to, and as being 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 Com owing upon such a contract. The provicomplete and perfect security.” The making of a trip with the car into Penn- monwealth v. Cutshall, supra, a saving sylvania was not a "removal” within the clause for the protection of rights which meaning of the provision on that subject , would otherwise be destroyed by an inwhich manifestly was not intended to rem forfeiture decree. While it may be prevent temporary absences from the proper to interpret it with some measure place where it was kept, in the use of ing the rights of innocent parties, it is of liberality for the purpose of protect , 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 "misuse" be construed as including any un- which is plainly and clearly outside of thus to apply the provision to a case lawful use, and if it be therefore considered that the unlawful use which Cut- the meaning and scope of the language shall made of the car while in Pennsyl used. By the explicit provisions of vania, gave the mortgagee a contract clause (III), the person to whom it gives 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 ant be brought within that language. He a right of possession upon any other does not have the legal title; he is a mere ground than that of “seizure by process mortgagee. He is not a bailor; he never of law.” The effect of the seizure for made a bailment to Cutshall . Cutshall violation of the law has already been held possession, not under a bailment mentioned, and was ruled on in Com lease or contract, but as the legal owner of the car. To hold that claimant is enmonwealth v. Cutshall, 4 Wash. Co. R. 7: We reaffirm the views expressed in titled to an award under clause (III) . the case just cited, and hold that the would be judicial legislation, and not a claimant, not having any ownership, and declaration and enforcement of the law being a mere mortgagee out of posses- which the legislature has made. sion, does not come within the class of And now, March 17, 1924, it having claimants who under the provisions of been made to appear upon the hearing, subdivision (D), Sec. II, of the Act of and being now found as a fact, that the March 27, 1923, P. L. 34, are entitled to Dodge automobile described in the petitake the possession of a seized car from ' tion of the district attorney has been used for the unlawful transportation of follows: "I this day give and bequeath Griffith at the time of her death, under the appraisement for transfer inheritance O. C. of Somerset Co. tax by the commonwealth, contending that Sidney E. Griffith was vested with Estate of Sidncy E. Griffith, deceased 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 Inheritance tax--Will--Defeasible es- tax. tate in fee simple-Remarriage of widow This contention raises the question as -Which estate liable for payment? to what estate was devised to her by her husband, under the facts, following By virtue of a provision of a will as fol- his death. I am of opinion the will gave lows: “I this day give and bequeath to my her a defeasible estate, and in the event beloved wife Sidney E. Griffith, all the per absolute estate sonal property and real estate I possess at that she remarried an my death as long as she remains my widow; would have been defeated; but in as she shall pay all just claims that I owe. I much as her remarriage never having appoint her sole executrix." happened, she became seized of a fee The will gives to the widow a defeasible estate and in case of death without re-mar- simple estate in all the real property of estate in fee simply; the widow which her husband died seized. Upon having been devised an estate which ripened her death the defeasible estate vested in into a title in fee simple, the same is therefore liable for the transfer inheritance tax. her by the will of her husband became absolutely an estate in fee simple, and Appeal from transfer inheritance tax the estate descends to her legal heirs; assessment on real estate of decedent. that the estate is not vested in her heirs Daryle R. Heckman, for Common by virtue of the will of the husband: wealth of Pennsylvania. Scott v. Murray , 218 Murray , 218 Pa., 186-187; Fidelity Trust Company v. Boblosky, E. E. Kiernan, for estate. 228 Pa., 52; McCall v. Umbenhauer, 270 Pa., 351. . Berkey, P. J., June 7th, 1924.-J. J. Her estate is therefore liable for the Griffith was seized in fee of a twenty transfer inheritance tax. five acre tract of land situate in Jenner Township, Somerset County, and being The appeal by the executor of Sidney so seized January 21, 1898, made his E. Griffith dismissed at the costs of her last will and testament which reads as estate. riage an goes to court has Q. S. of Northampton Co stand just what is meant, but assuming Commonwealth v. Wilson that the juror was prejudiced against the defendant prior to the trial, that fact is not sufficient to entitle him to a new Vew trial—Impeachment of verdict- trial. The defendant should know whom the jurors are before trial, and the law After-discovered evidence--Intoxication has given him a liberal number of perof juror-Record of conviction. emptory challenges, and he is entitled to any number of challenges for cause It is never permitted to impeach a verdict shown. The juror was sworn to try the by the declarations of a juror as to what happened in the jury-room, or as to what case according to the law and the eviinfluenced him. cence, and the verdict of twelve men is Where a juror becomes intoxicated upon the trial, and from time to time never set aside, even if it should be provsleep, it is the duty of counsel to bring the en that one of them, after the trial, had matter to the attention of the court at once. made prejudicial declarations against the The trial of a case is under the inspection of the court, and unless the court personally defendant. From Lessee of Cluggage v. notices a juror's condition, or has it brought Swan, 4 Binney, 150, to the late case of to its attention during a trial, allegations Groner v. Knights of Maccabees, 265 Pa. that the juror was intoxicated or asleep will not be considered, especially where the 129, it has been uniformly held that ver a distinct recollection that the dicts are not set aside by testimony of juror was neither intoxicated nor asleep. A witness may be asked, when on the the jurors as to what transpired in the had been convicted of a crime or not, for the individual jurors after verdict. stand, upon cross-examination, whether he jury-room, or impeached by remarks of purpose of affecting his credibility, or the other side may introduce the record that he has been convicted of a crime, without in The fifth and sixth reasons are based terrogating the witness upon the subject. upon after-discovered witnesses, and a Motion for new trial. Refused. large number of affidavits are attached to the petition. In Com. v. Roddy, 184 Charles P. Vaxwell, assistant district Pa. 274, it was held: “The refusal of a attorney, for Commonwealth. motion for a new trial is an error in law Frank P. McCluskey and Smith, Paft fusal amounts to a clear abuse of discre only where it is apparent that such re& 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. Flana . are 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 legiti- brought into court by the sheriff. We mate effect of such evidence would re- saw nothing to lead us to think he was quire a different verdict." The rule with intoxicated when he was brought into reference to granting a new trial is the court, and he was directed to take his same in civil as in criminal cases. Where seat in the box. Immediately after he the application is based upon after-dis- took his seat, counsel for the defendant covered testimony, the rules that control asked that the juror be sent from the the court in considering such applications room, and that a juror be withdrawn are: “I. The evidence must not be mere for the matters set forth in the thirly cumulative. 2. It must relate to the teenth reason. We immediately afforded merits and not to discredit or impeach counsel an opportunity to prove their alwitnesses. 3. It must have been discov-legations, and, as the record will show, ered since the prior trial, and be such they completely failed. The trial prothat by reasonable diligence it could not ceeded on Monday and Tuesday. After then have been produced. 4. It must be the verdict had been rendered, we called of that character which not only might the juror before us and examined him, produce a different result, but the legi- and particularly asked him whether he timate effect of which would require a had not been drinking on Sunday. He verdict for the other party.” Neither denied the fact, and he was then fined, the reasons nor the affidavits in this case not for intoxication, but for delaying the come within above rules. court. It would have been highly imThe seventh reason is as follows: proper to have examined the juror as to “That since the verdict has been render- his absence when he was brought into ed, the defendant has learned that one of court, and to have inflicted a fine upon the jurors, Martin, was intoxicated. him while discharging his duties. As we That the physical condition of the juror said before, there was no visible evidence was such by reason of his intoxication of intoxication. If the defendant's counthat at the time he was placed back in sel noticed anything, it should have been the jury-box he was unable to give his at once brought to the attention of the strict attention to the testimony given, court. It cannot be presumed that the and that the juror on several occasions sheriff would not have informed the during the trial dozed off to sleep while court if the juror had been intoxicated, testimony was being taken." This rea- and the watch which we uniformly keep son should be considered in connection on the jurors would have disclosed to us with the thirteenth reason which is as if the juror had been asleep. In a simifollows: "The court erred in refusing lar case, Com. v. Jongrass, 181 Pa. 172, the motion of counsel to withdraw a the Supreme Court said: "The other juror after the juror had been brought question relates to the refusal of the into court on an attachment, when it was court below to set aside the verdict bedisclosed that he was brought here to the cause it was alleged that one of the jurcourt 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 tachment was issued for him, and he was be untrue. He would not have been averment file an bound by such testimony if given, for C. P. of Philadelphia Co. neither a judge nor a juror is bound to Wetter v. Smith 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 Husband and wife - Automobiles failure of counsel to object to a juror Collision Statement verment of 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 Practice Act of May 14, 1915. of his non-appearance, and if that cause The mere relation of husband and wife incapacitated him at the time he resumed does not make the wife the husband's agent. his jury duty, it should be promptly damages to an automobile caused in a colli In an action of trespass to recover for brought to the attention of the court; sion with another automobile owned by deotherwise, a defendant cannot take the fendant, an in the statement of chances of a verdict in his favor and above named defendant, at said time and claim “that said automobile belonging to the raise the question on a motion for a new place was being operated with the knowltrial. See McCorkle v. Binns, 5 Binney, above named' defendant, by his wife,” is an edge, consent, approval and sanction of the 340; Eakman v. Sheaffer, 48 Pa. 176; insufficient averment of her agency, and, if Com. v. Razmus, 210 Pa. 609, and Cóm. no other evidence is offered at the trial as to her authority, or whether the car was env. Beard, 48 la. Superior Ct. 319. gaged in the defendant's business at the time of the accident, the defendant will be The ninth, tenth, eleventh and twelfth entitled to binding instructions, notwithreasons are as to the introduction by the standing the fact that he did not affidavit of defense; the failure to file the Commonwealth in rebuttal of the record affidavit operated as an admission under of the conviction of defendant's witness section 13 of the Practice Act of May 14, 1915, P. L. 483, but, owing to the insufficifor larceny and burglary. The objection ency of the averment, the admission did the is made that the witness was not asked, defendant no harm. when upon the stand, whether he had Motion for judgment n. 0. v. Albeen convicted or not, and that not hav lowed. ing been asked, the Commonwealth could not offer the record of his conviction in F. Carroll Fow, for plaintiff. rebuttal. This was not the case of a defendant, and we are not interested in the B. J. O'Connell, for defendant. variety of decision that arose after Buck Shoemaker, P. J., February 14, 1924. v. Com., 107 Pa. 486, was decided, but - This was an action in trespass to rein Com. v. Racco, 225 Pa. 113, it was held that a witness may be asked wheth- caused by negligence. cover for damages to an automobile, er he had not been convicted of a crime, By the fourth paragraph of the statebut it was said that the record was the ment of claim it was averred: “That said best evidence. The fact can be shown automobile, belonging to the above named either way; by asking the witness him- defendant, at said time and place, was self, and if he admits it, that ends it; if being operated with the knowledge, conhe denies it, by putting the record in; or sent, approval and sanction of the abovethe Commonwealth can introduce it sub- sent, approval and sanction of the above named defendant, by his wife.” No af , sequently, as was done in this case in re- fidavit of defence was filed. buttal. See, also, Com. v. Auerbach, 71 The 13th section of the Practice Act Pa. Superior Ct. 54. We see no reason; of May 14, 1915, P. L. 483, provides : why the testimony of Mr. Seifert should "In actions of trespass, the averments, in not have been received in rebuttal. At the statement, of the person by whom the most it amounted to little, but it did the act was committed, the agency or have some bearing on the location of the employment of such person, the owner , Excelsior store. ship or possession of the vehicle, machinAnd now, Oct. 8, 1923, motion for a ery, property or instrumentality involved, new trial is refused, and motion in arrest and all similar averments, if not denied, of judgment is denied. shall be taken to be admitted in accord |