and is therefore, invalid. If the record | largely by persons accustomed to and had only said that the justice had heard preferring an admixture of chicory in "the parties, their proofs and allega- their coffee, he had sold to an agent of tions," we might have understood there- the Dairy and Food Commissioner a from that that comprehended proofs in cup of black coffee, supposedly to be support of the claim, and that might be drunk on the premises, an analysis of regarded as sufficient; but here the proofs which showed it to be a decoction of a were only exacted from the defendant, mixture of coffee and 20 per cent of while the plaintiff's claim stood on noth- chicory. Strongly of the opinion that ing that could be regarded as "proof" there was no case for conviction under at all. If it had any support it was the that act, the court nevertheless permitted insufficient support of an affidavit. the contrary view of counsel for the Commonwealth to prevail, charged accordingly and accepted the resulting verdict of guilty, but at once entered this rule. The third assignment of error is sustained, and the proceedings before the justice are reversed. Dealing with the Pure Food Act of June 26, 1895, P. L. 317, in Com. v. Kebort, 212 Pa., 289, 291, the Supreme Court laid down the rule that the statute, being penal, etc., "must receive a strict construction with due regard for the popular comprehension," i. e., as elsewhere pointed out (Leonard v. Com., 112 Pa., 607, 625; Com. v. Hufnal, 185 Pa., 376, 379), giving to the language involved its ordinary, popular meaning, unless clearly defined otherwise. Prima facie, therefore, a statute relating to the adulteration of food does not embrace what in practical everyday usage and understanding is classed as a beverage or drink: Com. v. Kebort, 212 Pa., 289; not even milk. See Com. v. Hufnal, 185 Pa., 376; Phoenixville Boro. v. Eyrich, 42 Pa. Superior Ct., 241, 244. The Act of 1909, however, defines what it means by the word "food" as used in it, and that definition is binding: Com. ບ. J. Howard Jacobs, for defendant and Pflaum, 50 Pa. Superior Ct., 55, 59 (afrule. firmed, 236 Pa., 294). The first clause of section 2 says that the term "food" shall include not only every article used for food by man, but also every article. used for, or entering into the composition of, or intended as an ingredient in the preparation of, food for man. Now, we all know and the lexicographers agree that "coffee" means the bean or berry of the coffee tree, whole or crushed or ground after roasting, and means also the decoction or infusion made of the latter. It is further matter of common knowledge that, in one form or the other, coffee enters into the composition of var ious articles of human food, such as ice, cream, confections, etc. But here we have nothing to do with it in any such relation. What the defendant sold did not enter and was not intended to enter into the composition of any other article. It was sold and intended to be used as what it was, a decoction to be drunk, a beverage, a drink, not a "food" in the ordinary or in the statutory sense of the term. Webster's Dictionary defines coffee as we have here to do with it as a beverage, quoting Bacon, who mentions it as a drink called coffee." It is safe to say that in no common parlance would it ever be called anything else, and that by no ordinary person would it ever be thought of as anything else; and remembering the generic distinction, emphasized in Com. v. Kebort, 212 Pa., 289, in the thought and speech of the race from time immemorial between "food" and "drink", the law cannot call it anything else. So far as has come to our notice, if there is any statute under which a prosecution can be maintained upon the facts here appearing, it would seem to be the Act of March 11, 1909, P. L., 15, relating to non-alcoholic drinks and their adulteration. It is not necessary to decide now whether that statute covers this case. It is enough that its enactment is a legislative recognition of the essential distinction between foods and drinks; that the specific treatment of the latter excludes, on the principle expressio unius est exclusio alterius according to its most potential significance (Maxwell, Int. of Stat., p. 398), the idea, if otherwise conceivable, that the Act of May 13, 1909, P. L., 520, was designed to embrace them; and that the two acts, passed at the same session and in pari materia (see White v. Meadville, 177 Pa., 643; Penna. Trust Co. v. Jones, 35 Pa. Superior Ct., 53, 56), cannot be treated as interfering with or overlapping each other. It follows that the Act of May 13, 1909, P. L., 520, does not reach this case and defendant's conviction under it cannot be sustained. It may be noted that the conclusion reached does not in any degree conflict with the views expressed in In re Stephens & Widlar, 5 Dist. R., 104. The question there dealt with arose under the Act of 1895, and involved the sale, not of adulterated coffee as a beverage to be drunk as such, but of ground roasted coffee, adulterated by the addition of chicory and other substances, to be used for purposes including that of entering into the composition of other articles of food. As above intimated. such a sale may be within the Act of May 13, 1909, P. L., 520. The rule to show cause is made absolute. Legal Miscellany. are not The Doctrine of Idem Sonans. The recent case of Hodgkin v. Boswell (Or.), 127 Pac., 985, holding that "Hodgkin" and "Hodgkins idem sonans, stirs in the legal mind a desire to inquire into the method by which the court reaches its conclusion. Several authorities are cited to sustain and sanction its evidently correct ruling that both names are common and easily distinguished. "Hauthorn and Hawthorne," "Troyer and Trager," " Griffie and Griffin," cited from Marx v. Hauthorn, 148 U. S., 180, 13 Sup. Ct., 508; Troyer v. Wood, 96 Mo., 478, 10 S. W., 42; State v. Griffie, 118 Mo., 188, 23 S. W., 878, with others equally as different from the names in question, are sufficient precedents to satisfy the court of the correctness of its decision. Considered and tested simply by the doctrine of idem sonans, we would without much hesitancy declare these names clearly within the rule. But they legally are not. What. then, of the rule itself which so leads us astray? The definition most acceptable is that, if a name is spelled in a legal document or proceeding though differing from the correct spelling thereof, conveys to the ear, when pronounced according to the commonly accepted methods, a sound practically identical with the sound of the correct name as commonly pronounced, there is no variance. Kelly v. Kuhnhausen, 51 Wash., 193, 98 Pac., 603. An incipient peculiarity noticeable in | (Gresham v. Walker, 10 Ala., 370); its mere statement is that the decision Johnson" and "Johnston" (Miltonseemingly is made to depend, not so vale State Bank v. Kuhnle, 50 Kan., 420, much on reason and soundness of judg- 31 Pac., 1057); "Gigger" and "Jiger ment, as on the accuracy and acuteness (Commonwealth v. Jennings, 121 Mass., of the sense of hearing. An identity of 47); " Booth" and "Boothe" (Jackson sound is resorted to as a surer designa- v. State, 74 Ala., 26). The following tion of the names of persons than iden- are held not idem sonans: "Humphrey' tity of spelling. To appeal to the sense and "Humphreys" (Humphrey v. Whitof the court's hearing in purely legal ten, 17 Ala., 30); "Favors" and "Faver" proceedings argues a paucity of legal (Faver v. Robinson, 46 Tex., 204); principles, and opens one of the largest "Elisha " and " Elijah" (Mead v. State, holes in the warp and woof of legal tech- | 26 Ohio St., 505); "Keesel” and “ Keinicalities. How variant and unstable sel" (Hunter v. Reickhoff, 103 Iowa, must have been the application of the 368, 72 N. W., 540); "Noble" and rule in its early development. Every "Nobles" (Noble v. State, 139 Ala., 90, judge necessarily has his own peculiar 36 South, 19). auricular sense to satisfy. A highly sensitive and cultivated ear will instantly detect dissimilar sounds in pronunciation, where a dull and inattentive one will find difficulty in distinguishing between them. In the judgment of the first the names in question would be declared idem sonans; in the latter, other wise. A man's liberty might be the issue, and the sense of hearing the arbiter of his destiny. In the gradual development of legal procedure the rule was found to be too restricted in its meaning, and the tendency of decisions latterly is towards the principle that a variance, to be material, must be such as to be in fact misleading. Now, much latitude is permissible in the spelling and pronunciation of names, and absolute accuracy in their spelling is not insisted upon in legal documents or proceedings. A middle initial or middle name may be entirely disregarded as immaterial. Keene v. Meade, 28 U. S. (3 Pet.), 1. Though we are aided somewhat by this enlarged construction of the ancient doctrine of idem sonans, much confusion yet exists in its practical application. If we are given any similar, though in fact variant, names, precedents may be readily cited by opposing counsel to sustain a ruling favorable to either side. For instance, the following names have been declared idem sonans and within the rule: "Vester" and "Vister" (Gaither v. Commonwealth, Ky., 91 S. W., 1124); "Usrey" and "Usury Usury" From the mere citation of these lists of names, it is difficult to discern by what methods of pronunciation the courts have decided the first-mentioned as idem sonans, and the latter not. "Humphrey" and "Humphreys" seem to more nearly convey the same sound than "Usrey" and "Usury." The fact remains that very few general principles can be laid down to unerringly guide in the correct application of the rule. We may gather from the examination of numerous authorities that the names must be pronounced by the accepted English pronunciation. Even this broad rule has its exceptions, for in localities having a predominant foreign population the foreign accent in pronunciation must be taken into consideration. Myer v. Fegaly, 39 Pa., 429. The addition or omission of a final "s to or from a name otherwise identical usually renders the name not idem sonans. The contrary rule prevails with the letter "e," when added or omitted as a final letter, for "Booth" and "Boothe," supra, and “Clark" and "Clarke" (Altschul v. Casey, 45 Or., 182, 76 Pac., 1083), are idem sonans. In names ending in "son," generally the omission or addition of a "t" before the ending is immaterial. Aside from these simple peculiarities, very little can be suggested to clarify the darkened fog of this beclouded doctrine. Resort may be had to the hundreds of particular names classified and labeled within or not within the rule. Even with these collections as beacon | witnesses saw the deed. It was com lights, the names continuously coming up for determination are themselves of first impression, leaving us hopelessly to pound against the hard rocks of our own sense of euphony. We can not, however, escape the use of the rule as far as it is available; for the necessity for its application arises in many classes of cases both in the civil and criminal practice. The question most frequently occurs in cases of variance in names between indictments and information and the proof offered in support thereof; between judgments and transcripts and their record; between the process or summons and the other proceedings in the case; between the declaration or complaint and the proof; between notices in mechanic's lien proceedings, or in mortgage foreclosures, and the subsequent records therein; and between the names set out and the real persons involved in special assessments, tax bills, deeds, notes, bonds, ballots, special venires, and other instruments or records. Whether the question when it is raised is for the court or for the jury, depends generally on the manner in which it arises, though primarily it is rather one of fact than of law. When it is presented by demurrer to an indictment or other pleading, and the names are necessarily pronounced substantially alike, the question may be determined by the court. When it arises in evidence on the general issue, or otherwise is presented as an issue of fact, and extrinsic evidence is necessary to ascertain the pronunciation, it may be submitted to the jury. Commonwealth v. Warren, 143 Mass., 568, 10 N. E., 178, 29 Cyc., 277.-The Docket. Moral Sense. Bishop Winston C. Rutherford tells this story, says the Newark Star: "Colonel Byrne, a Kentuckian, defended a man for murder. It was testified that this man murdered a woman on the night of August 20. Two or three mitted under the milky light of a full moon. The witnesses were able to identify the defendant on account of the brilliance of the moonlight. The defendant could not prove an alibi, and things looked pretty bad for him. But at this point Colonel Byrne produced an almanac, showing that on the night in question there had been no moon whatever. Thereupon a great laugh resounded through the courtroom, and the defendant was speedily acquitted. "Colonel," said the defendant afterward, “how much do I owe you," *** You owe me,' the colonel answered, $500.' 'Ain't that pretty steep?' "No-not when you consider that I only get $100 out of it.' Why, what did you do with the other $400, colonel-bribe the jury?" "No, sir! shouted Colonel Byrne, hotly. No, sir! Do you think I have no moral sense? It cost me $400, sir, to get that almanac printed!'" O. C. ADJUDICATIONS. Monday, September 20, 1915. Abram Shoemaker, Martic. Fannie Fletcher, Elizabethtown. Barnhart T. Hohendahl, Columbia. LANCASTER LAW REVIEW. said they lived in one house at that time, VOL. XXXII.] FRIDAY, OCT. 1, 1915. Common Pleas-- Law. Binkley v. Herr. Mrs. Binkley and herself on one side and David S. Herr on the other; that [No. 48 there were present at that conversation herself, David S. Herr and his wife; that she, the witness, told him, “I am looking after grandmother's note," and that he said, "Yes, I know, Alice, I am on that note; I will have to pay it, and I will pay it." The actual note was not before them at the time. She also testified that, about December, 1912, she and the defendant were in their sitting-room on their side of the house; that she told him the same as she did the other time, and that he said just the same as he did the other time, namely, I know I am on the note; I will have to pay it, and I will pay it"; that he also said that want her to lose that money." "grandmother was old and he wouldn't Note-Limitations-Promise to pay. Where a maker of a promissory note when asked about it says 'Yes, I know I am on that note; I will have to pay it and I will pay it," this is sufficient to toll the running of the statute of limitations. Rule for judgment for defendant n. o. C. P. of Lancaster Co., January Term, 1914, No. 28. V. F. Lyman Windolph, for rule. H. Frank Eshleman, contra. July 3, 1915. Opinion by LANDIS, P. J. It was undisputed upon the trial that, on April 1, 1906, John N. Herr and David S. Herr made their promissory note, payable to the order of Mary Ann Binkley, one year after date, for the sum of $170.00, with interest at five per cent. John N. Herr died about 1910, and his estate was settled up by his widow, Alice E. Herr. When the estate was adjudicated, $37.90 was awarded out of it on account of the note and was credited upon it. The note was, for a valuable consideration, transferred by the payee to Abram E. Binkley, the use-plaintiff. Alice E. Herr, the widow of John N. Herr, was the daughter of Mary Ann Binkley. She was called as a witness and testified that, at the request of her mother, and as her agent, she, in the latter part of 1911, spoke to David S. Herr, the defendant, about this note. It was admitted, on all hands, that there was only one note signed by David S. Herr, which was payable to Mary Ann Binkley, and Mrs. Herr stated it was this note that they were talking about.. She 66 David S. Herr never paid any interest on the note, and testified that he never promised to pay it. Upon the disputed facts, the jury found a verdict in favor of the plaintiff. It is now claimed that the note was barred by the Statute of Limitations when this suit was brought, and that there is no sufficient evidence to prove that the defendant made such a new promise as tolled the running of the statute. In Shaffer's Estate, 228 Pa., 36, the rule is stated that, in order to relieve a claim from the effect of the Statute of Limitations, there must be a clear and definite acknowledgment of the debt, a specification of the amount due or a reference to something from which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay." Now, it seems to me that the only thing to be considered in this case is, whether or not the promise which has been found by the jury measures up to that standard. I am of opinion that it does. The defendant, upon being told by the witness, Mrs. Herr, that she was looking after her mother's note and was her agent, said, “Yes, I know, Alice, I am on that note; I will have to pay it, and I will pay it." There seems to me to be no equivocal declaration in that testimony, and the jury have established, by their verdict, that it was made. There |
