Disasters like the Titanic and the Lusitania show the crying need of such a law.

An Obliging Friend.

C. E. Friend, after taking a few drinks, and accompanied by seven or eight quarts of whisky, boarded a train en route for home. He was in a mighty good humor, good-natured, talkative, and liberal. He thought it was nice to build churches, and told a district superintendent of the M. E. church how to go about it. He also made liberal subscriptions for that purpose, after which he sat down, pulled his hat down over his face, and was soon asleep. When he awoke, the conductor had him out on the platform of the coach. He said to the conductor, "Gentlemen, you are making a mistake; I don't want to get off here, I am going to Prestonburg;" to which he claimed the conductor replied with an oath, "We want you off." Twelve of his peers thought he was entitled to $1,000 for this treatment, thereby differing from the Court of Appeals of Kentucky, which thought a verdict should have been directed for defendant. The conductor claimed to have tried to get Friend's ticket three different times without success. Mr. Justice Hannah, in Chesapeake & O. Ry. Co. v. Friend, 169 Southwestern Reporter, 509, in discussing the case, said: "There might be circumstances requiring unusual or extraordinary efforts upon the part of the conductor to arouse a sleeping passenger, as

C. P. AND Q. S. OPINIONS.

Saturday, October 16, 1915.

By JUDGE HASSLER:

Charles W. Schwebel, et al., v. Anna S. Wohlsen, executrix of Peter N. Wohlsen, deceased. Exceptions to opinion and decree dismissed.

New York Gas and Electric Appliance Company, Inc., v. John H. Hook. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for plaintiff for $145.04.

Safety Mutual Fire Insurance Company (a corporation) v. Samuel K. Landis. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for the plaintiff for $101.42, with leave to proceed.

Catherine M. Kegel v. Henry M. Hartman. Rule to open judgment made absolute.

Commonwealth v. Wm. D. Metzger. Larceny by bailee. Motion to quash indictment sustained and indictment quashed.

Commonwealth v. William D. Metzger. Desertion. Rule to revoke order of the court discharged.

the law and the evidence, the jury were

The third reason is, that we erred in

Common Pleas--Law.

Pennell v. McLaughlin (No. 2).

-

Expert witness-Examination as to fee -Evidence New trial Burden of proof-Charge of court as to.

An expert witness may be asked on crossexamination whether he received extra or special compensation for testifying in the case. Where, on the trial of an issue to ascertain whether the defendant signed a scire facias and a note, the court instructed the jury that, under the testimony, they could not find that he signed the scire facias, it cannot be objected on a rule for a new trial that it was error to admit the scire facias in evidence because the signature was not sufficiently proven. Where, in such case, the court charged the jury that if they found that the defendant signed the note, the verdict should be for the plaintiff, it cannot be objected that the court did not charge that the burden of proof was on the plaintiff to prove the signature. It is not necessary to use the words, "burden of proof."

Rule for a new trial. C. P. of Lancaster Co. April Term, 1904, No. 69.

Coyle & Keller, for defendant and

rule.

B. F. Davis, contra.

July 3, 1915. Opinion by HASSLER, J.

This issue was granted to ascertain by a verdict of a jury whether P. W. McLaughlin signed the amicable scire facias upon which this judgment was entered, and also whether he signed the note upon which the original judgment was entered. At the trial we instructed the jury that, under the testimony, they could not find that he signed the amicable scire facias, and left to them the question whether he did sign the note. The jury found he had done so, and we are now asked to grant a new trial.

The first two reasons for a new trial are general and without merit, as, under

facias, as it had not been sufficiently proved as to the signature of P. W. McLaughlin. We do not think that the admission of this paper in evidence had any effect for or against the defendant. Conceding that it should not have been admitted, our instructions to the jury that it was not proven that the defendant had signed it, and that they would have to find that he had not signed it, cured any possible error.

The fourth reason is, that we erred in allowing the plaintiff to ask T. H. McCool, an expert witness for the defendant, whether he received extra or special compensation from the defendant for testifying in the case.

It is always permissible to examine a witness concerning matters which tend to impeach his credibility, or his favor, bias or ill-feeling for or against one of the parties to the suit. In Shannon v. Castner, 21 Sup., 294, it is decided that an expert witness may be cross-examined to show that he was to receive compensation above his regular witness fees. That case disposes of this reason.

The fifth reason is as follows: "The Court erred in not permitting the defendant to ask J. C. Whiteside as to his advice to the defendant with regard to the defendant's cows, when he learned of the execution against J. F. McLaughlin." J. C. Whiteside is the defendant's father-in-law. The cattle were at the home of J. F. McLaughlin, who was a joint defendant with the defendant in this case in the judgment and execution. The defendant in this case could, and did, explain why he drove. the cattle away from J. F. McLaughlin's premises; but no one else could testify what he said in advising him to do so.

The sixth reason is: "The Court erred in not charging the jury as to the burden of proof-that is, that the burden was on the plaintiff to prove that the signature on the judgment note was genuine, and not on the defendant to disprove it." We did not tell the jury

in so many words that the burden of proof was upon the plaintiff to show that the defendant signed the judgment note; but we did tell them what was equivalent thereto, that, if they found he did sign the note, the verdict must be for the plaintiff, and that if they found he did not, it must be for the defendant. We know of no rule of law requiring us to use the words, "burden of proof," in instructing the jury, and we think that our instruction that it was necessary for them to find the fact from the testimony was sufficient to show that it had to be proven before a verdict could be found in favor of the plaintiff.

We do not think any error was committed on the trial of the case, and we, therefore, discharge the rule for a new trial.

Rule discharged.

Anderson v. McGuire.

Building restrictions - Double houseDividing wall.

Defendant refused to complete the purchase of two lots upon each of which he intended to erect a double house, contending that a building restriction "That no more than one dwelling-house should be erected, built or maintained on said lot," would prevent the erection of the proposed houses. On a case stated,

Held, That the erection of a building divided into two separate and distinct tenements by a solid wall, extending from the front to the rear, thus enabling the owner to sub-divide his lot and convey separately each half as a house and lot, violated the restriction and judgment entered for defendant.

Case stated. C. P. of Allegheny Co. Case stated. C. P. of Allegheny Co. October Term, 1915, No. 1094.

Geo. H. Quaill, for plaintiff. Hermann L. Hegner, for defendant. September 9, 1915. Opinion by CARPENTER, J.

The parties have agreed upon the facts and submitted same as a "Case Stated" for the opinion of the Court, in the nature of a special verdict. The facts necessary to a proper adjudication of the question submitted are set out clearly and the question is concisely presented.

Plaintiff is the owner of two lots, and has agreed in writing to sell and convey same to defendant for the sum of $1,900.00, but the latter, though desirous to purchase, has declined to accept and pay for said lots because of building restrictions contained in deeds from South Pittsburgh Land Company to John A. Schwalm, and recited or referred to in subsequent deeds in plaintiff's chain of title, as follows: "Subject to the following restrictions, agreements and covenants, which shall continue in force and run with the land until the first day of January, 1920, and no longer, viz.: That no more than one dwelling-house shall be erected, built or maintained on said lot."

Defendant's purpose in purchasing said lots was to erect on each a double dwelling-house, to wit: "a brick dwelling-house, enclosed beneath one roof, designed and intended for the use and occupancy of two families, so arranged as to furnish each family with a complete and independent set of apartments, with no communication between the two parts of the building, having independent and separate entrances from a front porch, the two parts of the double dwelling-house being separated from each other by a common solid brick wall.”

It is agreed that "if the Court be of opinion that the building, erecting and maintaining on each of said lots of a double brick dwelling-house of the type or style known as a double dwellinghouse, designed for the occupancy of two families under one roof in the double building so arranged as to furnish each family with a complete and independent set of apartments having independent and separate entrances from a front porch, the two parts of the double dwelling-house being separated from each other by a common solid brick wall, is no violation of the covenant contained in said deeds, that no more than one dwelling-house shall be erected, built or maintained on said lot,' then judgment to be entered in favor of the plaintiff and against the defendant in the Case Stated, in the sum of $1.900.00. If the Court should be of opinion that

the building, erecting and maintaining of such double brick dwelling-house on each of said lots is a violation of said covenant, then judgment to be entered for defendant in the Case Stated; the costs to follow the judgment, and either party reserving the right to appeal therefrom to the Supreme Court.

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The question submitted is: What is the legal effect of the words used in the restrictive clause above quoted? In Hamnett v. Born, 247 Pa., 418, the restriction was, Not more than one dwelling shall be erected or maintained on each forty (40) feet of land." It was there contended that the erection of what is known as a "duplex dwelling-house" was a violation of the restriction. Judge Reid of our Court held that such was not the case and dismissed the bill, and on appeal this decree was affirmed, Mr. Justice Stewart writing the opinion, in which Johnson v. Jones, 244 Pa., 386, was followed. In Hamnett v. Born, the Court said: "The fact that the building is a single structure intended for dwelling purposes brings it within what is permitted under the restriction; the fact that it is intended to accommodate a number of families does to bring it within what is forbidden.'

66

What is known as a "double dwellinghouse" is familiar to everybody, and the expressions, double dwelling-house," "double house," etc., convey the same meaning, to wit, two houses having a common wall which, for the purpose of occupation, or sale if desired, separates the tenements. A double house does not differ, so far as the middle wall of partition is concerned, from a solid row of dwellings each separated from the adjoining house by a wall common to both; the owner can sell, and convey_separately, houses so constructed. In this respect a double house or solid row of houses differs from a duplex dwelling and an apartment house. In Park v. Eaton, 115 Mo. App., 171, the restrictive clause was, "Nor more than one house be erected on each 40 feet," and it was held that this was intended to exclude plural structures rather than plural uses, and was therefore not violated by the erection of a house planned

for separate occupancy by two families, one on the first and one on the second floor. The erection of a building divided into two separate and distinct tenements by a solid wall, extending from the front to the rear, thus enabling the owner to sub-divide his lot and convey separately each half as a house and lot, is, in our opinion, a palpable violation of the restriction that no more than one dwelling-house shall be erected, or maintained, on said lot," and judgment for defendant is entered, as per stipulation in the Case Stated.

Where a tax-collector sells personal property, which is in possession of a person other than the owner, without making legal adverin trespass cannot set up a defense that the tisement, he is a trespasser, and in an action sale of the property to the owner was a fraud

on the creditors of the vendor and therefore invalid.

A sale and delivery of personal property for the purpose of hindering and defeating creditors in the collection of their debts, is fraudulent and void as to such creditors, but

good and available as to the parties them

selves.

Trespass for damages for illegal sale. of personal property. C. P. of Somerset County.

Berkey and Shaver, for plaintiff. Uhl and Ealy, for defendant. October 9, 1913. Opinion by JOHNSON, J. (specially presiding).

This case was brought by the plaintiff, Matilda Cook, against the defendant, Christian Sides, to recover damages for the illegal sale of personal property claimed by the plaintiff. The case was submitted to the jury and a verdict rendered in favor of the plaintiff for fortyeight dollars and seventy-nine cents. The defendant is now asking for a new trial and for judgment non obstante veredicto.

The contention of the plaintiff at the trial was briefly as follows: She pur

An exception is granted on the court's overruling the motion for judgment non obstante veredicto.

Burgert v. Fitch.

that the property belonged to her and not to Ford; and, secondly, that no legal advertisement of the sale was made.

The defendant contends that the sale

from Ford to the plaintiff was in fraud of creditors, and therefore that the taxcollector was warranted in levying upon and selling the same.

It is a fact that the defendant as taxcollector made no legal advertisement. Therefore, in the levy and sale of the goods he was a trespasser, and he could not set up the defense that the sale of the goods from Ford to the plaintiff was a fraud upon the creditors, and therefore invalid. "A sale and delivery of personal property for the purpose of hindering and defeating creditors in the collection of their debts is fraudulent and void as to such creditors, but good| and available as to the parties themselves. Nor can the creditors avoid

such sale and delivery except by legal process; and in taking the property without such process they are trespassers; and the officer taking it with process out of his jurisdiction thereby becomes a trespasser" McGee v. Campbell, 7 Watts, 545

Therefore, the only questions for the jury to pass upon were whether the goods in question were sold and transferred from D. P. Ford to the plaintiff, and what was the value of the goods on December 18, 1909, the time of the sale. These questions were submitted to the jury and a verdict rendered by them in favor of the plaintiff, and we think there was sufficient evidence to warrant their finding.

The motion for judgment non obstante veredicto is overruled, and the motion for a new trial is overruled and

give counter bond-Act of April 19, 1901, P. L. 88.

One who repairs an automobile, while he give a claim-property bond and retain posseshas a lien for his charges, has no right to sion in replevin.

Replevin. Rule to deliver property to plaintiff. C. P. of Lackawanna County. June Term, 1915. No. 271.

Walter L. Schanz and Scragg & Scragg, for the rule.

M. J. Murray, Jr., contra.

June 24, 1915. Opinion by EDWARDS, P. J.

The rights of the parties in an action of replevin are regulated entirely by the Act of 1901; and, therefore, many of the cases decided before the date of that act of assembly no longer control the practice in replevin. In the present case the plaintiff filed the usual bond. The subject of the replevin is an automobile, and the defendant claimed the right to retain the possession of the machine until his charges for repairs were paid. Defendant claims no title to the machine. He is a lienor only; and as such lienor he had no right to give a counter bond, and the sheriff had no right to take it. It was the sheriff's plain duty to deliver the automobile to the plaintiff. The lienor's rights are secured by Section 6 of the Act of 1901: "If any party be found to have only a lien upon said goods and chattels, a conditional verdict may be entered, which the court shall enforce in accordance with equitable principles." For a full discussion of the question involved, we refer to the case of Shorley v. The Hub Machine, etc.,