The plaintiff depends, for his position that the defendants cannot erect a shed over the alley, on three cases where erection over or under private alleys were held to be improper, but we do not think they support his contention. In Schmoele vs. Betz, 212 Pa., 32, it is held that an erection over an alley which was a fire escape, must be removed because it was

erected by one who had no right to the use of the alley appurtenant to the property to which it was attached, and also because its existence caused the alley to be used much more extensively than it otherwise would have been to the injury of the present complainant. These are not questions in the present case. In Ellis vs. The Academy of Music, 120 Pa., 608, it was held that the defendant could not maintain a shed over an alley because he was not the owner of the fee of the soil, as the plaintiff was owner of one half of it, and such erection was an infringement of plaintiff's right in his own property. The plaintiff's property in the present case is not touched by the shed in question, so that she is not in the same position to object to it as was the plaintiff in that case. In Mershon vs. Fidelity Insurance Company, 208 Pa., 293, it was held that one could not dig up and maintain a grating over the surface of a portion of the areaway to the injury of those who had a right to use it with horses, carts, etc. Such grating

was held to be an obstruction and interfered with the plaintiff's use of it, but in this case we do not think the shed interferes with the plaintiff's right. In that case we think the Supreme Court confirms the views we have expressed here, in that it implies that the defendant might have the right to use underneath the surface of the ground so as not to interfere with the plaintiff's use of the surface, in suggesting that the court below might modify the order that it be

Being of the opinion that the shed erected by the defendants is within their rights as owners of the fee, and that the plaintiff's right to the use of the alley is not interfered with, we must refuse the relief prayed for and dismiss plaintiff's bill at her costs."

July 9, 1910. Opinion by HASSLER, J. We have examined the exceptions filed law and are not convinced that any error to our findings of fact and conclusions of was committed. We, therefore, dismiss all the exceptions and direct the solicitor for the plaintiff to draw up a decree in accordance with our opinion filed April 16, 1910, as required by Rules 83 and 84 of the Equity Rules.

Common Pleas--Taw.

C. P. OF LANCASTER COUNTY. Shnavly vs. Crouse. Appeal nunc pro tunc-Note dated on Sunday-Presumption.

An appellant will not be allowed to enter his appeal nunc pro tunc when his testimony that he was misled by the justice is uncor

roborated and denied by the justice.

A petitioner to enter an appeal nunc pro tunc must aver that he has a good defense and prove it if contradicted.

While ordinarily a note is presumed to have been executed and delivered on its date when that is on a Sunday, the contrary presumption arises when the note was given in renewal of a former note,

Trust Book No. 21, page 449.

Rule to enter appeal nunc pro tunc.
W. U. Hensel, for rule.
Coyle & Keller, contra.

July 9, 1910. Opinion by HASSLER, J. On April 21, 1910, judgment was entered before F. E. Engle, a justice of the peace, in favor of the plaintiff, and against the defendant. On May 7, 1910, the defendant took an appeal, which, on May 23, 1910, being the fourth Monday of the month, he took to the prothonotary's office to enter. The prothonotary refused to accept it, as the last day upon which it could have been entered was on

The defendant testifies that the justice told him it should be entered on the fourth or last Monday of the month. His testimony is not corroborated, though he says that Daniel G. Gring, the surety on the recognizance he was required to give when he appealed, and who accompanied him to the justice's office at that time, was present when the justice told him. He knew, or could have known, that the defendant denied that the justice told him this, as the answer was filed seventeen days before the depositions were taken. The justice, in his testimony, denies that he told the defendant that he could enter it on the fourth Monday of May. He testified that he told him it was either the third or fourth Monday; that he was not sure, but that he should file it as soon as he could, and that it would be best to see his attorney. There is abundant authority to the effect that we could and should allow an appeal to be entered nunc pro tunc, where an appellant has been misled by the justice, before whom the judgment was obtained, as to the time when it must be entered in the prothonotary's office. This court has so ruled in numerous cases, among which are Henderson vs. Risser, 17 L. L. R., 17; Gable vs. Bear, 18 L. L. R., 342; Lingle vs. Erb, 20 LANC. LAW REVIEW, 312. But where the appellant's statement is contradicted by the justice as to his having been misled, being oath against oath, his testimony must be corroborated, or his proof does not measure up to the required standard, and he should not be allowed to enter his appeal after the time for entering it is past. This has been decided by this court in Reinhart vs. Sener, 20 L. L. R., 311. See also Wetzel vs.

In the present case the petitioner is squarely contradicted by the justice as to his having been misled. It is oath against oath, and the petititoner's proof does not measure up to the required standard. The fact that there was a witness present during the ten minutes that the petitioner was at the justice's office, when the conversation took place, was known to him, and that he did not call him, is a circumstance to be taken against his testimony.

An additional reason why the prayer of the petition should not be granted is, that the defendant does no show he has a defense to plaintiff's claim. He says so in his petition. The defendant denies it and the petitioner does not attempt to prove it. That he got no money on the note is not a defense, as he was an endorser and admits it was a renewal of an old note. It was delivered to the plaintiff before maturity. That it was dated on Sunday is not a defense, if it was not delivered on that day. The presumption ordinarily, in such cases is, that it was executed and delivered on the day of its date, but the fact that it was given to a bank in renewal of an old note raises a contrary presumption, as banks are not open on Sunday for such business. The petitioner should not only show that he was misled by the justice to entitle him to have an appeal entered nunc pro tunc, but also that he has a good defense to it, and when this is contradicted he should prove that he has such a defense, and what its nature and character is; Anderson vs. Mergelkamp, 8 Delaware, 586; Rogers Co. vs. Sapovits, 7 Just., 256.

The petitioner then having failed both to show that he was misled, by the standard of proof required, and that he has a good defense, we must refuse to permit him to enter the appeal nunc pro tunc, and discharge the rule granted to show why he should not do so. Rule discharged.

(8) In not holding that said act vio

VOL. XXVII.] MONDAY, AUG. 8, 1910. [No.40.

Supreme Court.

Commonwealth vs. Herr, et al., Appellants.

School law-Religious dress-Act of June 27, 1895—Constitutional law.

The Act of June 27, 1895, P. L., 395, forbidding the wearing of religious dress, etc., by a public school teacher is not unconstitutional, by reason of its religious discrimination or defective title.

Appeal No. 277 of January Term, 1909, by the defendants from judgment of Superior Court reversing judgment of Q. S. of Lancaster County.

The Q. S. Court of Lancaster County gave judgment for the defendants, the school directors of Mount Joy Township on a demurrer to an indictment for employing and permitting a public school teacher to wear a dress indicating that she was a member of a religious denomination contrary to the Act of June 27, 1895. (See 25 LAW REVIEW, 353.)

This action was an appeal reversed by the Superior court. (See 26 LAW REVIEW, 297.)

This appeal was then taken, assigning for error the action of the Superior

Court.

tution.

(10) In not holding that said act was in violation of the Constituion of the United States.

W. U. Hensel and I. R. Herr, for appellants.

The title of the Act of June 26, 1895, P. L. 317, does not give sufficient notice of its contents.

The fact that the act requires a second conviction to deprive a director of his office does not take this section out of this case as there can not be a second conviction until there has been a first.

The Act is unconstitutional in attempting to punish the individual director for the act of the corporate body.

P.

Com. vs. Bredin, 165 Pa., 224.

Am. vs. Eng., Ency. of Law, vol. 15,
1196.

Trickett vs. Boroughs, 270, par. 218.
Com. vs. Kinports, 2 D. R., 349.

The Statute grossly discriminates against people on account of their religious opinions, while the state may prescribe a uniform for its teachers as suggested in Hysong vs. Gallitzin School District, 104 Pa., 629, it may not proscribe a particular form of dress merely because it "indicates" the wearer's religious belief, and allow any garb indicating anything else.

John E. Malone, A. M. De Haven, J. W. Johnson, Dist. Atty., and S. V. Hosterman, Ass't Dist. Atty., for appellee.

The title to an act need not be an index to its contents, but only give reasonable notice.

Com. vs. Green, 58 Pa., 226.

Com. vs. Silverman, 138 Pa., 642. Com. vs. Morning Star, 144 Pa., 103 Com. vs. Connor, 207 Pa., 263. Bridgewater Boro. vs. Beaver Bridge Co., 210 Pa., 105.

Com. vs. Fisher, 213 Pa., 48.

House of Refuge vs. Luzerne Co., 215 Pa., 429.

Com. vs. Clymer, 30 Pa. Super., 61.

landlord is authorized to distrain the personal property of his tenant for unpaid rent, is the Act of 21 March 1772, I Smith Laws 307. Section I provides that where, "The tenant or owner of the goods so distrained shall not, within five days next after such distress taken and notice thereof . . . replevy the same . . . then and in such case, after such distress and notice as aforesaid and expiration of the said five days, the person distraining shall and may . . . cause the goods and chattels so distrained to be appraised . . . and after such appraisement shall or may after six days public notice, lawfully sell the goods and chattels so distrained," etc.

This act was construed in Davis vs. Davis, 128 Pa., 100, where the defendant levied on the plaintiff's goods on Tuesday, as in this case, appraised them on Monday, as in this case, and subsequently sold them and was sued by the plaintiff for such sale, because, as he claimed, the appraisement was made one day too soon, and it was held that the plaintiff was entitled to recover. In delivering the opinion of the court Justice Williams says, "The act of 1772 was framed upon the statute 2 W. & M., and the landlord was left under the necessity of strict compliance with its provisions, or of being held a trespasser ab initio and liable as such for the full value of the goods seized and sold. A failure, therefore, to make an appraisement of the goods, or the making of it before the lapse of five full days after the seizure, is a failure to follow the statutory requirement on which the right to sell is given, and a sale made under such circumstances, not being under the protection of the act, is unauthorized and void: Briggs vs. Large, 30 Pa., 287; Kerr vs. Sharp, 14 S. & R., 399; Brisben vs. Wilson, 60 Pa., 452.

"In this case, the seizure was made on Tuesday. The fifth day after, was Sunday. This being excluded from the count, the fifth juridicial day was Monday, and the appraisement could not be properly made until Tuesday. The act gave no authority to make it until after full five days had elapsed after the seizure. It gave no authority to sell un

til after an appraisement, made in accordance with its directions. As the appraisement was made on the fifth day instead of after, it was made one day too soon. So far as its legal effect is concerned, it might as well have been made on the day of the seizure, or not made at all. The sale of the goods was not made under the authority of the act of 1772, because its directions were not followed, and, no other authority having been shown, the conclusion is inevitable that the sale was unauthorized and that the plaintiff below was properly allowed

to recover.

"This is a great hardship. There is no suggestion of any actual injury resulting from the appraisement on Monday instead of Tuesday. None could have resulted so far as we are able to see, but that is not for us to determine. The act requires that the appraisement shall be made after five days, and authorizes a sale only after such appraisement.' Relief from the consequences of an irregularity in the proceedings must come here, as it came in England, by means of a legislative provision. Until it does come, we have the unpleasant duty of enforcing a rule, which, though sound in law, is harsh in its application to cases like that under consideration, and in this works positive injustice."

This so clearly rules the question of the plaintiff's right to recover in the present case, where the facts are almost identical, that it is unnecessary to further discuss it. We do not agree with the defendant's contention that Whitton vs. Milligan, 153 Pa., 376, questions the case of Davis vs. Davis, supra, but, on the contrary, we find that it recognizes it to be a correct statement of the law.

The fifth reason is that, "We erred in not instructing the jury that they might find the value of the goods to be $1712.50, less the value of the hay and straw and cornfodder, to which the plaintiff has testified." We instructed the jury that the plaintiff could not recover for any hay, straw or corn fodder, as, according to the lease, they did not belong to him. We also reviewed all the testimony of the value of the goods. We then said, “The plaintiff has also offered