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regulated by them so as to do justice and secure the rights of the remaindermen, Watson's Estate, 241 Pa. 271.
We are therefore of opinion that the plaintiff had power to make the agreement sued upon, and that her deed will pass a good and marketable title in fee simple and that she is therefore entitled to recover the purchase money agreed upon. It is therefore ordered that judgment be entered for the plaintiff and against the, defendant in the sum of forty-five hundred ($4,500) dollars, with interest from June 10, 1914.
special verdict, from which it appears that the defendant has agreed to purchase certain land therein described, from the plaintiff, she to convey to him a good and marketable title in fee simple, and that he has refused to carry out the purchase, alleging that she does not have such title. It is admitted that David Gelb, the deceased husband of the plaintiff, had a good and marketable title at the time of his death, which occurred in April, 1913, and that the land is not subject to the lien of any unsecured debt of his or any other incumbrance. David Gelb left a will, which was duly probated, by which he gave and devised to his wife, the plaintiff, all his estate, real, personal and mixed for and during her life," with privilege to dispose of any or all of the real estate if she chooses." The will then provides that after his wife's death. her trustees shall within one year reduce his estate to money and pay certain sums to his grandchildren. It is plain from the whole tenor of the will that the testator does not intend his wife to have more than a life estate in the property given to her, and she cannot therefore convey the land as owner of the fee. She does not, however, as appears by the article of agreement with the defendant, claim to do so, but claims to make the sale in execution of a power of sale given her by the will. The only question, therefore, is whether the words with privilege to dispose of the real estate" gives her power to sell it. We are of opinion that to give effect to these words the will must be interpreted as giving her the power of sale in fee. If they were to apply only to her life estate they would be entirely unmeaning. We are of opinion that the testator intended that his wife should have in her possession and care during her lifetime all his property, and that she might turn the real estate into money if she so desired, and
The defendant was convicted of having entered upon the practice of veteri
that then whatever was left at her death should go as directed by the other clauses of his will. As to whether the plaintiff has power to expend more than the in-nary medicine and surgery without first come of the property, it is a matter with having complied with the Act of May which we are not here concerned. That 16, 1895, P. L. 79, and without having is a matter which is within the jurisdic- had a license duly granted to him, as tion of the Orphans' Court and can be provided in the act. A motion is now
Commonwealth v. Pearce.
Veterinary practitioners Definition-
Filing and cutting the teeth of horses with instruments used by veterinary surgeons conMay 16, 1895, P. L. 79. stitutes veterinary surgery within the Act of
The offence prohibited by the Act of May 16, 1895, P. L. 79, is "entering upon the practice of veterinary medicine or surgery" withticing of veterinary medicine or surgery. An out compliance with the act, and not the pracindictment cannot be found more than two years after the defendant entered upon such practice.
Motion in arrest of judgment and for uary Sessions, 1911, No. 99. a new trial. Q. S. of Dauphin Co. Jan
John Fox Weiss and Ruby R. Vale, for Commonwealth.
Fox & Geyer and C. Berntheisel, for defendant.
May 4, 1914. Opinion by KUNKEL, P. J.
made in arrest of judgment and for a new trial, on the ground that the acts done by him did not constitute the practice of veterinary medicine and surgery within the meaning of the statute, and that, as he had been engaged in doing the acts for more than two years prior to March 22, 1911, when the indictment was found, the statutory penalty cannot be enforced against him.
by the evidence constituted veterinary surgery.
2. The defendant was engaged in the practice of veterinary dentistry or surgery more than two years prior to the time the indictment was found, and for this reason it is contended that it cannot be said that he entere upon the practice of veterinary me icine and surgery after that time. The language of the Act of May 16, 1895, P. L. 79, is:
1. The evidence showed that the defendant had advertised himself as a doc-" From and after the first Monday in tor of veterinary dentistry and was prac- September, 1895, no person shall enter ticing veterinary medicine and surgery upon the practice of veterinary medicine in the year 1900, and that during the and surgery in the State of Pennsyltime covered by the indictment he was vania," etc. This contention amounts to engaged in dressing the teeth of horses a plea of the statute of limitations, and in the County of Dauphin, his work con- involves the construction of the phrase, sisting in filing the teeth to sharp edges "enter upon the practice." The Comand in cutting the projections there from monwealth asks us to construe it as which had not worn off by mastication, though it read, “no person shall practice using for the purpose the same kind of veterinary medicine and surgery in the instruments and in the same manner as State of Pennsylvania after the time were used by veterinary surgeons. The stated." If the phrase were open to instruments which he used were construction, it would be our duty to so "tooth-rake," which is a sharp instru- construe it as to effectuate the general ment on the order of a file, and is used purpose of the statute, which is to preby drawing it toward the operator for vent the unauthorized practice of veterithe purpose of cutting. Other instru- nary medicine and surgery. But the ments which he used were called tooth phrase does not admit of construction. forceps, cutters, extractors and tooth It is ambiguous. It is ambiguous. It must be given its chisels. The defendant contends that popular meaning. To "enter upon the the acts thus proven did not amount to practice of surgery" means to begin to the practice of veterinary medicine and practice or to begin to engage in pracsurgery. With this contention we can- tice in the common and ordinary acceptnot agree. Surgery is a branch of med- ance of the term, and the prohibition is ical science, and is the use of instru- against entering upon the practice and ments and appliances upon the body for the offence is the entering upon the the purpose of cure. The instruments practice, and is so charged in the indictmay be used upon any part of the body, ment. We have no warrant to construe and may be characterized as a particular the phrase so as to extend the prohibikind of surgery, dependent upon the part tion and to enlarge the offence. If the of the body upon which they are used. legislature had intended to make the The use of instruments upon the teeth of offence that of practicing veterinary a human being for remedial purposes is medicine and surgery, apt words could understood to be dental surgery, and is readily have been used; but they were so designated, and if the instruments be not used, and we are not at liberty to used for such purpose upon the teeth incorporate into the legislation that and mouths of horses, it is veterinary which the legislature has not seen fit to surgery. The phrase used in the statute do. Manifestly the legislature assumed is veterinary medicine and surgery, and that all persons who should enter upon is broad enough to include every branch the practice of veterinary medicine and of veterinary medicine or surgery, how- surgery after the time fixed without the soever it may be particularized. We required registration and license would think the acts of the defendant as shown be covered by the language used, and
that thus the purpose of the statute would be accomplished. The penalty is enforceable against all such persons, provided the prosecution is brought within the time limited by law in such cases. If the prohibition of the statute is not broad enough to completely accomplish the end desired, the remedy is with the legislature alone, which may extend it by amendment. We are not prepared to give a meaning to the parase in question other than that which common usage recognizes: Endlich on Interpretation of Statutes, sec. 6.
It is suggested by the Commonwealth that what the defendant dil two years prior to the finding of the indictment did not constitute entering upon the practice, With equal reason may the same be said of that which he did during the time covered by the indictment, for his acts were substantially the same during both perio's of time.
The motion for a new trial and in arrest of judgment is sustained and the verdict set aside and a new trial granted.
President-W. U. Hensel.
Legal Status of Mechanical Vehicles on Highways; Rights of Foot Passengers on Highway.
Good roads are always evidences of high civilization, states Hon. Burton W. in the July Case and Comment, and with Potter, of the Worcester (Mass.) Bar, good roads we may always look for con
venient and artistic methods of travel. Motor cycles, automobiles, and auto trucks are now familiar objects on both the city and country roads. As they of the machines on the highway becomes come into general use, the legal status an interesting and important question to their owners and the public at large. There is very little statute or adjudicated law bearing directly upon their use in our public streets and ways, but no doubt many of the well-established principles of our road law are as applicable to them as to the ordinary road vehicle. Every new invention or discovery produces changes in the law. The main principles of the law remain substantially the same from one generation to another; but new applications and modifications of those principles are constantly necessitated by
new inventions and discoveries in the mechanic arts which change the habits and modes of life of the people. If they are treated in law the same as ordinary road vehicles now known to the law, then their use is already regulated by the customs and usages of generations past, and the principles of law applicable to them have been settled by the decisions of the highest courts of the world.
A public thoroughfare is a way for foot passengers as well as carriages, and a person has a right to walk on the carriage way if he pleases; but, as Chief Justice Denman once remarked, “he had better not, especially at night, when car
riages are passing along." However, all persons have an undoubted right to walk on the beaten tracks of a road, if it has no sidewalk, even if infirm with age or disease, and are entitled to the exercise of reasonable care on the part of persons driving vehicles along it. If there is a sidewalk which is in bad condition, or obstructed by merchandise or otherwise, then the foot passenger has a right to walk on the road if he pleases. But it should be borne in mind that what is proper on a country road might not be in the crowded streets of a city. In law every one is bound to regulate his conduct to meet the situations in which he is placed and the circumstances around him at the time. A person infirm with age or disease, or afflicted with poor eyesight, should always take extraordinary precaution in walking upon the road. Footmen have a right to cross a highway on every proper occasion, but when convenient they should pass upon cross walks, and in so doing should look out for teams; for it is as much their duty, on crossing a road, to look out for teams, as it is the duty of the drivers of teams to be vigilant in not running over them.
of the author has produced a work of great completeness and accuracy of and eminently practical value to the student and the practitioner. Many valuable observations and suggestions growing out of the ripe experience of this author will be found in this work which are not embodied in any other.
The principles of the law are set forth by the author in clear and concentrated style sufficiently but not too profusely fortified by foot-note citations and the arrangement is logical and well adapted for quick and easy reference. The book is well made up and the type plain and clear.
The appendix contains the Orphans' Court Acts of 1832, 1833 and 1834 with the explanatory remarks of the Commissioners, containing much matter of great interest practically inaccessible to the profession heretofore relating to the history and development of the Orphans' Court.
The work has peculiar merits of its own and is well worth the support of the bar.
O. C. ADJUDICATIONS AND OPINIONS.
By JUDGE SMITH. Adjudications.
Thursday, December 10, 1914.
Rachel M. Rynear, Bart Twp.
Monday, December 21, 1914.
John L. Breneman, Mt. Joy Boro.
Estate of Frederick Goos. Rule to remove administrator made absolute if administrator refuses to sell real estate.
The 16th section of the Act of
LANCASTER LAW REVIEW. July 7, 1913. P. L. 672, provides that
any person operating a motor vehicle VOL. XXXII.] FRIDAY, JAN. 1, 1915. [No. 9 when intoxicated shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine of not less than one hundred dollars ($100), nor more than three hundred dollars ($300), or imprisonment for not more than one year, or both, at the discretion of the Court." The indictment alleges that the defendant "did operate a motor vehicle when intoxicated.'" We, therefore, are of the opinion that the charge, as thus set forth, is clearly within the Act of Assembly, and that it is also fully sustained by the complaint. It will hardly be claimed that an automobile is not a motor vehicle. It would also seem reasonable to conclude that, if a man is under the influence of liquor, he may
be deemed to be intoxicated. The fact that he is also alleged to have been reckless does not in any way militate against the real offense. This Act was enacted to aid in the protection of those who use the roads and streets. It serves a public benefit, and it should be given full force and effect.
Commonwealth v. Rupp.
Indictment Amendment Operating motor vehicle when intoxicated-Act of July 7, 1913.
An indictment may be amended to correct a mistake in the name of the defendant.
A complaint charging that the defendant did at a given time and place "operate an automobile No. 78,266 while under the influence of liquor in a reckless manner is sufficient to sustain an indictment under the Act of July 7, 1913, P. L. 672 for operating vehicle when intoxicated."
Indictment for operating motor vehicle when intoxicated. Plea in abatement. Motion to quash indictment. Q. S. of Lancaster Co., November Sessions 1914. No. 46.
We think the indictment is correct in form, and we now dismiss the motion to
Commonwealth v. Hartman.
Costs-Felony-Receiving stolen goods.
The grand jury has no right to impose the costs on the prosecutor in ignoring an indictment for receiving stolen goods.
The Act of May 25, 1897 P. L. 89 is the only Act giving the grand jury the right of disposition over the costs in case of felony and it does not cover the offense of receiving stolen goods.
Indictment for receiving stolen goods. Rule to set aside finding of Grand Jury imposing costs on Henry Cantor prosecutor. Q. S. of Lancaster Co., September Sessions 1914, No. 83.
Willis G. Kendig, for rule.
John M. Groff, District Attorney,