ment of counsel, an issue was framed by the court with the New Salem Cumberland Presbyterian Church as plaintiff and the McClellandtown Presbyterian Church as defendant, for the purpose of determining which of the parties was entitled to the money, the pleadings in the case to be in accordance with the terms of the agreement filed.

By the agreement of counsel the parties dispensed with trial by jury and submitted the decision of the case to the court, in accordance with the provisions of the Act of April 22, 1874, P. L., 109, the plaintiff in the issue to file a statement of claim within thirty days after the filing of the agreement, and the defendant to file an answer thereto within thirty days after the filing of the plaintiff's statement and the service of a copy thereof on the defendant, and thereafter the case to come to trial for determination by the court in regular course. A statement, answer, replication, and answer to the replication, were filed. On On October 27, 1914, alleging that the defendant had not set forth in its pleadings any allegations that would entitle it to a recovery of the fund in court, that the defendant would not be entitled to judgment even though it established the truth of all the allegations contained in its pleadings, and that the allegations contained in the pleadings of the plaintiff remained undisputed and not denied, and were such as entitled the plaintiff to said fund, the plaintiff took a rule on the defendant to show cause why judgment upon the whole record should not be entered for the plaintiff. The rule was made returnable on the third Monday of November, 1914. On March 1, 1915, no answer having been filed to the rule, counsel for the plaintiff procured an order from the court making the rule absolute. On the following day counsel for the defendant, alleging that they had considered the rule taken by plaintiff's counsel inappropriate for any purpose in the proceeding, and had expected it to go upon the argument list and be heard in regular order, and that judgment thereon had been entered without notice to them, took a rule on the plaintiff to show cause why the judg

ment entered on March 1, 1915, should not be stricken off and the case restored to its original status. That rule now is before us, and arguments thereon have been heard.

The order for judgment was made by a member of the court not now on the bench, on the opening day of a busy term of court, when there was no opportunity for examination and judicial consideration of the matter, doubtless without sufficient knowledge or information as to the exact nature of the proceeding, but in the belief that the case was a proper one for judgment for want of an answer to the rule. The contention of the defendant is that the judgment was entered inadvertently and illegally and should be stricken off. It is contended that after it had been agreed by counsel that the case should be heard by the court under the Act of April 22, 1874, P. L., 109, the only manner in which a valid judgment can be entered is in accordance with the provisions of that Act. With that contention of counsel we agree. The Act provides that in the disposition of cases under its provisions the decision of the court shall be in writing, stating separately and distinctly the facts found, and the court's conclusions of law, and shall be filed in the office of the prothonotary or clerk of the court wherein the case is pending, that notice thereof shall be given by the prothonotary or clerk to the parties or their attorneys, and that if no exceptions thereto be filed within thirty days after service of such notice judgment shall be entered thereon, but that if exceptions to the findings of facts or conclusions of law be filed within said thirty days, the court, or the judge thereof who tried the case. may, upon argument, order judgment to be entered according to the decision previously filed, or make such modification thereof as in justice and right shall seem proper, subject always, nevertheless, to review by writ of error or appeal in the Supreme Court. The manner in which judgment was taken in this case is absolutely inconsistent with the provisions of the act and the judgment should not be permitted to stand. The parties entered into a solemn agreement, reduced to

writing and filed, submitting the case to | the decision of the court under the provisions of the Act of Assembly cited, and the case cannot be disposed of in any other way without the consent of both of the parties.

And now, June 29, 1915, for the reasons given in the opinion herewith filed, the rule to strike off judgment is made. absolute, the judgment entered on March 1, 1915, is stricken from the record, and the case is restored to the status existing immediately prior to the taking of the rule for judgment.

Legal Miscellany.

Reluctant Awakening.

The attorneys for the prosecution and defense had been allowed fifteen minutes each to argue the case. The attorney for the defense had commenced his arguments with an illusion to the old swimming-hole of his boyhood days. He told in flowery oratory of the balmy air, the singing birds, the joy of youth, the delights of the cool water

And in the midst of it he was interrupted by the drawling voice of the judge.

"Come out, Chauncey," he said, "and put on your clothes. Your fifteen minutes are up."-Everybody's.

C. P. AND Q. S. OPINIONS. By JUDGE LANDIS:

Saturday, September 25, 1915.

Swinehart Tire & Rubber Co. v. Penn Real Estate Co. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment for plaintiff for $63.05.

Frank A. Long and James Carroll, with notice to Daniel Carroll, et al., terre tenants. Rule for citation. Judgment for plaintiff for $66.

F. M. Jackson v. Flora and Samuel S. Rannels. Rule to open judgment made absolute.

Com. v. Maud Axer. Indictment for public nuisance quashed.

Com. v. Minnie Stalcupp. Indictment for public nuisance quashed.

Com. v. Minnie Stalcupp. Motion to quash indictment for solicitation overruled.

O. C. ADJUDICATIONS AND OPINIONS.

By JUDGE SMITH:

Thursday, September 23, 1915.
Adjudications:

Elizabeth Shutte, City.

Catharine Drace, Elizabethtown.
Barbara B. Funk, Manor.

Aquilla B. Lamborn, Little Britain.
Matilda Fessler, W. Cocalico.
Annie C. Bitner, City.
Edw. C. Hall, City.
Mary Jane Wright, City.
Thursday, September 30, 1915.
Daniel R. Doner, East Lampeter.
Elizabeth Kerckhoff, City.

Harry J. Waltz, City (guardian).
Henry J. Waltz, City.
Annie E. Harry, City.
Elizabeth Musketnuss, City.
Ella W. Johnston, City.
Elizabeth A. Laub, East Earl.
Elizabeth L. Laub, Earl.
George W. Laub, City.
Annie Snavely, East Drumore.
Charles E. Downey, City.
Mary Mullen, Columbia.
Peter Smythe, East Earl.
Emma Shultz, City.

Opinions:

Estate of Joseph Beck, dec'd. Exceptions dismissed.

Estate of Henry W. Shreiner, dec'd. First nine exceptions sustained.

LANCASTER LAW REVIEW.

VOL. XXXII.] FRIDAY, OCT. 8, 1915. [No. 49

Quarter Sessions.

Commonwealth v. Minnie Stalcup.

Indictment for soliciting on street-Nui

sance.

An indictment alleging that the defendant 'openly and publicly, in and on a public highway, in the hearing of the citizens of the said Commonwealth, and to their manifest corruption and subversion, did solicit men for immoral purposes sets forth an offense which openly outrages decency and is injurious to public morals and therefore constitutes a misdemeanor at common law though not a public nuisance.

The allegation in the indictment that the defendant did demean herself improperly and did interfere with and annoy the traveling public" is too general to constitute a criminal charge.

Indictment for nuisance for soliciting on street. Motion to quash indictment. Q. S. of Lancaster Co. September Term, 1915, No. 42.

S. V. Hosterman, for motion. John M. Groff, Dist. Atty., contra. September 25, 1915. Opinion by LANDIS, P. J.

The indictment in this case charges that the defendant, "being an evil disposed person, and designing, contriving and intending the morals of divers citizens of this Commonwealth to debauch and corrupt, openly and publicly, in and on a public highway, in the hearing of the citizens of the said Commonwealth, and to their manifest corruption and subversion, and to the common nuisance of all good citizens of the Commonwealth, did solicit men for immoral purposes, did demean herself improperly, and did interfere with and annoy the traveling public." The question arising is, does the indictment in this form set forth an offense under the law?

In Amer. & Eng. Encyc. of Law, Vol.

25, p. 1152, it is said that "neither at

common law nor under statutes making fornication and adultery misdemeanors is a bare solicitation of chastity indictable. From a purely ethical standpoint, such solicitation may constitute an attempt to commit the offense, yet the law does not so regard it, and it is not indictable as an attempt.' It is also held, in Smith v. Commonwealth, 54 Pa., 209, that it is not indictable "to solicit, incite and endeavor to persuade" a married woman to commit fornication or adultery, and to the same effect is Pierson's Case, I Salk., 382. In the former case, Woodward, C. J., says: "It is easy to say that solicitation is an attempt, but a study of the cases will show that every case of attempt has included something more than mere solicitation, and the slightest reflection will persuade any observant man that a rule of law which should make mere solicitation to fornication or adultery indictable would be an impracticable rule, one that in the present usages and manners of society would lead to great abuses and oppressions. The morality of the law cannot undertake to regulate the thoughts and intents of the heart. The best it can do is to punish open acts of lewdness and repress indecent assaults. For the rest, it must trust the people to the refining influences of Christian education."

I have never heard of a defendant being indicted as a public nuisance for personal misconduct, and I do not think that any such charge can be sustained. But, after all, we must look, not to the endorsement on the back of the indictment, but to the substance of the charge contained in it. It is also clear that an allegation that a defendant "did demean herself improperly and did interfere with and annoy the traveling public," is entirely too general and does not set forth a criminal charge. There are, however, offenses against the public morals which are indictable, and, while they may not be a public nuisance, they are, nevertheless, offenses against the law, for which indictments lie.

It was held, in James v. Commonwealth, 12 S. & R., 236, that a common

ion filed this day in Commonwealth v. Maud Axer, Indictment No. 40, September Sessions, 1915, this indictment is quashed.

Indictment quashed.

Commonwealth v. Maud Axer.

F. P. McCluskey, contra.

Complaint and indictment for public nuisance-Variance-Soliciting on street for immoral purposes. Indictment for public nuisance. tion to quash. Q. S. of Lancaster September Term, 1915, No. 40.

S. V. Hosterman, for motion. John M. Groff, Dist. Atty., contra. September 25, 1915. Opinion by LANDIS, P. J.

In this case, the complaint charged that Maud Axer, the defendant, did "become a public nuisance by soliciting men on the public highway for immoral purposes, and otherwise demeaning herself improperly, and otherwise interfering with the traveling public." In the indict ment, the charge is "that the said Maud Axer. . . did cause to be erected, set up, established, maintained, kept up and continued, a public or common nuisance." We think that there is a variance shown between the complaint and the indictment, and the latter, for this reason, should be quashed.

Indictment quashed.

Com. ex. rel. McDonald v. Collins. Habeas corpus-Testimony-Crimes.

The practice now is, upon a hearing on a writ of habeas corpus, if a crime be charged, not only must the proceedings be regular, but the testimony must tend to establish the charge, not beyond a reasonable doubt, but it must be sufficient upon which a verdict of guilty would be permitted to stand.

ance as aforesaid. On June 22, 1915, this writ of habeas corpus issued and as therein commanded the keeper of the jail brought McDonald before the court on June 24, 1915, and made return that McDonald was detained by him by virtue of said commitment. As is universally known the writ of habeas corpus is to relieve persons illegally restrained of their liberty. The early practice was not to free them if they were legally held, that is, if there was a crime charged and the proceedings were regular. The regularity of the proceedings and not the guilt or innocence of the accused was the question. In later years, however, our Pennsylvania courts have established the practice of examining not only the proceedings but also the evidence and now the rule is that if a crime be charged, not only must the proceedings be regular but the testimony must tend to establish the charge, not beyond a reasonable doubt, but it must be sufficient upon which a verdict of guilty would be permitted to stand. In practice as far as I know, the accused at the hearing has not, as yet, ever been permitted to testify in his own behalf. It would seem that to permit him to testify and to refute the evidence against him would be to try the case, which is solely the province of a jury, but the Evidence Act of 1887, P. L., 158 (with certain exceptions), makes persons . . . fully competent witness in

66 all

F. B. McAlee, for writ.

tribunal." Has a person charged with a misdemeanor and committed to jail for want of bail, a right to testify at the