Carney's Case.

Criminal law-Escape from prison-Sentence-Serving time of sentence— Maximum sentence-Act of March 31, 1860.

1. Where a person convicted of crime breaks from prison and is recaptured, he may be convicted and sentenced for the crime of escaping or breaking prison under the Act of March 31, 1860, P. L. 382, but the length of the sentence cannot exceed the original sentence.

2. On such a conviction, the sentence will not run concurrently with the original sentence, but the second sentence must begin at the termination of the first one. 3. In such case, the maximum of the first sentence must be fully served before the second sentence will begin.

4. After the expiration of the original sentence, the prisoner may be paroled as if he had not committed the offence of breaking prison and escaping.

Attorney-General's Department. Opinion to Dr. Ellen C. Potter, Commissioner of Public Welfare.

WALLACE, Dep. Att'y-Gen., April 12, 1923.—I have your communication of March 27, 1923, requesting an opinion relative to a convict escaped from the Penitentiary and recaptured, with special reference to Clyde D. Carney.

Where a person has been convicted of a crime and sentenced to the Penitentiary, and while serving his sentence escapes and is recaptured, he is liable to indictment, conviction and sentence for the crime of escapting or breaking prison, which is made by law a misdemeanor, and he shall be sentenced by the court for a term to commence from the expiration of his original sentence for a period of time not to exceed the original sentence, by virtue of which he was imprisoned at the time he broke prison or escaped.

There is a marked distinction between cases where persons are out on parole and persons who commit the offence of breaking prison or escaping during the time they are serving sentence. The latter case is governed by the 3rd section of the Criminal Code, approved March 31, 1860, P. L. 382, 385. The part of said section covering this question reads as follows: ". if any prisoner imprisoned in any penitentiary or jail upon a conviction for a criminal offence, other than murder in the first degree, or where the sentence is for imprisonment for life, shall break such penitentiary or jail, although no escape be actually made by him, such person shall be guilty of a misdemeanor, and, upon conviction of said offence, shall be sentenced to undergo an imprisonment, to commence from the expiration of his original sentence, of the like nature, and for a period of time not exceeding the original sentence, by virtue of which he was imprisoned when he so broke prison and escaped or broke prison, although no actual escape was made by him."

The breaking of prison or the escape from prison constitutes a misdemeanor under our law which is a separate and distinct offence, and, upon conviction, the court shall sentence the defendant to a term in prison to commence at the expiration of the sentence by virtue of which he was imprisoned at the time of the breaking of jail or escape. However, it will be noticed that the length of sentence is not to exceed the original sentence, which leaves with the court the authority to sentence for such a period as he deems proper and advisable under the circumstances, not to exceed in length the period of the original sentence. The law is very plain that the sentence shall not run concurrently, but rather that the second sentence must begin at the termination of the first one.

I am, therefore, of the opinion that the original maximum sentence must be served in full. The Supreme Court in Com. v. Kalck, 239 Pa. 541, said: "That a sentence for an indefinite term must be deemed a sentence for the maximum term prescribed by law as a punishment for the offence committed."

Carney's Case.

It will, therefore, be readily seen that "the expiration of the original sentence" must necessarily mean expiration of the maximum sentence.

However, after the expiration of such original maximum sentence, I see no reason why the prisoner could not be paroled the same as if he were serving his original service and had not committed the offence of breaking prison or escaping. The length of time the prisoner must serve in compliance with the sentences of both courts must necessarily depend upon the length of sentence imposed by the court in the second case.

You are, therefore, advised that the defendant must serve the full maximum of his first sentence and that he is eligible for parole only on his second sentence. From C. P. Addams, Harrisburg, Pa.

Walton's Estate.

Judgments of sister states-Service by leaving copy at defendant's residence-Act of April 14, 1851.

A judgment of a sister state, obtained against a resident thereof in an action in which service was made by leaving a copy of the writ or process at the defendant's residence, in accordance with the law of that state, will be enforced against a fund within the jurisdiction of the Orphans' Court.

Act of April 14, 1851, § 10, P. L. 612, 614, considered.

Exceptions to adjudication. O. C. Phila. Co., April T., 1921, No. 218.

The facts appear from the following extract from the adjudication of the auditing judge, Thompson, J.:

"Messrs. Gerhard and Wise presented a claim on behalf of Mrs. Frances R. Walton on a judgment in the Supreme Court of the State of New York against the decedent, entered June 27, 1911, for $1240, and costs of $119.33, with interest of $805.43, amounting in the aggregate to $2164.76, and for $20 per week alimony from May 27, 1911, to Feb. 21, 1920, $9100, less amount paid Aug. 25, 1920, of $400, and an exemplified copy of the record of said judgment was offered in evidence, from which it appears that Frances R. Walton, wife of decedent, brought an action for separation from bed and board from the decedent, and the cause was so proceeded with that the above judgment was obtained. It appears that, under the law of the State of New York, service of all legal process is required to be made personally on the defendant, but where defendant is evading service, upon proof of that fact being submitted, the court may grant leave to serve said process on defendant by leaving same at his residence. This was done in this case, and defendant was served by leaving a copy of the summons and complaint at the residence of defendant, 509 Fifth Avenue, New York City. After service was made in this manner, decedent, appearing specially for that purpose, applied to the court to set the same aside on the ground that he was not a resident of the State of New York, and that the court had not acquired jurisdiction over him. The affidavit and counter-affidavit on this application being conflicting, the court directed defendant to file a surety bond in the sum of $1000, to cover the costs and expenses of said application, otherwise the motion of decedent to set aside the said service would be denied. No bond was entered, and defendant's motion was subsequently dismissed and the cause proceeded in, with the result above mentioned. Counsel for the claimant, in presenting their claim, frankly concede that, if decedent was not a resident of the State of New York at the time process was served on him in the manner above indicated, the judgment has no extraterritorial force, and proceeded to prove before me that decedent was a resident of the State of New York, and that the service was a legal one.

Walton's Estate.

"I did not know at the hearing that the New York record disclosed an application by defendant to set aside the service on the ground stated in the court in which the judgment was entered and the refusal of said application, and, therefore, allowed evidence as to the residence of decedent to be received pro and con. I may say here that, at the time of my so ruling, Mr. Wise did not have an exemplified copy of the record, he relying upon what he thought was an agreement with Mr. Colahan that same was not essential to his claim; but as he had witnesses from New York, upon his assurance that an exemplified copy would be produced, I allowed testimony to be taken.

"I have read the New York record and considered the testimony taken before me, and, while conflicting, my judgment is that the defendant was a resident of the State of New York at the time the substituted service was made upon him, and that said service was, therefore, a good and legal one." To this ruling, exceptions were taken.

J. B. Colahan, 3rd, for exceptant; Albert P. Gerhard, contra.

LAMORELLE, P. J., May 3, 1923.—The award made by the auditing judge is based upon his finding that Alfred Walton was a resident of New York at the time suit was brought against him, and that the service was a good one under the law of that state. His necessary conclusion is that, in the circumstances, we must recognize the validity of the judgment when claim is made thereon in this jurisdiction.

The exceptant, son of decedent and next of kin (Alfred Walton having divorced his wife in 1919), contends, among other things, that a foreign judgment, which does not show personal service on defendant, is a nullity in this jurisdiction, citing the recent case of German Trust Co. v. Plotke, 274 Pa. 483, as authority for such position.

The Act of April 14, 1851, § 10, P. L. 612, provides: "That if the record of a judgment of another state does not show that personal service of the notice or process by which the suit was commenced upon which said judgment was obtained, was made in such foreign state, it shall be sufficient to maintain a plea to the jurisdiction of the court in which said judgment was rendered."

With reference to this section of the act, the court in its opinion, in the case cited above, said that this meant "simply that where service is depended on, it must appear as a personal, and not a constructive, service." Judge Martin, who delivered the opinion of the lower court, says, at page 485: "The object of a summons is to give defendant a day in court and afford an opportunity to present a defense. Any objection that might have been raised by reason of the failure to serve defendant with a summons was cured by his appearance through counsel and the presentation of his defense."

While Plotke was not domiciled in New Jersey, and while there was no personal service on him, the record did show that he appeared by attorney, presented a defence, and that the matter being submitted to a jury, a verdict was rendered against him and judgment afterwards entered thereon.

The record of the Supreme Court of the State of New York, County of New York, in the instant case, which was offered in evidence, shows that defendant, appearing only for the purpose of his application, moved for leave to set aside the service, alleging that he was not a resident of New York and that he had no home in that state. An order of reference was made contingent upon defendant's entry of security for costs. This he failed to do, whereupon judgment was entered against him.

While the authorities are conflicting as to whether personal service means

Walton's Estate.

service on the defendant personally, or whether it includes service at his residence (see 6 Words and Phrases, 5363), the hereinafter cited opinion of Mr. Justice Sharswood, in Reber v. Wright, would seem to favor the latter view.

Here, the judgment on which claim is now made followed a service, not on the person of defendant, but upon his residence, which latter means of service is allowable on allegations, properly substantiated, that defendant is evading a service upon him in person. The question of constructive service by publication does not enter into our discussion because of the findings of fact of the auditing judge.

In this sense, therefore, Mr. Justice Brown, in Shilling v. Seigle, 207 Pa. 381, 385, says, referring to defendant: "If he was not personally served, and did not appear in the foreign court, he is not concluded by the judgment there entered against him. Section 10 of the Act of April 14, 1851, P. L. 612, provides: 'If the record of a judgment of another state does not show that personal service of the notice or process by which the suit was commenced upon which said judgment was obtained was made in such foreign state, it shall be sufficient to maintain a plea to the jurisdiction of the court in which said judgment was rendered.'" In that case the return of the Ohio sheriff was: "I served the within named defendant, A. H. Seigle, by handing to him personally a certified copy of this writ with all the indorsements thereon." Later, in the same opinion, Mr. Justice Brown, in explanation of his former statement as to personal service, says, at page 386: "A record shows not only what appears in express words upon its face, but, in addition, it is to be read as showing whatever must be presumed to appear from it; and if in the present case it presumably shows that the summons was served on the appellant in the State of Ohio, it is sufficient, in the first instance, to sustain the jurisdiction of the foreign court in rendering judgment against him personally, to which all courts within the United States are bound to give the full faith and credit contemplated by the Federal Constitution. If it did not show actually or presumably that service had been made in the foreign state, the plea to the jurisdiction of the court in which the judgment was rendered could, of course, be maintained under section 10 of the Act of 1851."

The real meaning of section 10 of the Act of April 14, 1851, P. L. 612, is explained in Reber v. Wright, 68 Pa. 471, in the opinion of Mr. Justice Sharswood. After analyzing sections 9 and 10 of the act, he uses the following words, at page 476: "The 10th section was intended merely to provide that if the record on its face, where there was personal service, did not show that it was made in such foreign state, it should be sufficient to maintain the plea to the jurisdiction. It surely did not mean to say that where a service was made by leaving a copy at the residence of the defendant, or where there was a voluntary appearance, either in person or by attorney, the plea to the jurisdiction should be thereby maintained.' Perhaps there was no occasion for the act. It seems to have been passed ex majori cautela."

While the testimony submitted to the auditing judge, by and with the approval of both parties as to defendant's residence, as well as his domicile, is conflicting and contradictory, we are not prepared to say that he was not warranted in his finding of fact that the defendant was at the time a resident of New York, that service was made in accordance with the law of that state, and that, therefore, such judgment could be enforced against a fund in this jurisdiction.

Accordingly, all exceptions are dismissed and the adjudication is confirmed absolutely.

GEST, J., did not sit.

Franklin Sugar Refining Co. v. David Spruks Co.

Assumpsit-Pleading-Sufficiency of statement of claim under Sales Act of May 19, 1915-Use of technical phrases—Proof of latter by parol.

1. In an action of assumpsit upon a contract for the sale of sugar, a statement of claim is sufficient which sets forth a memorandum of sales signed by a broker, acting as agent for both seller and buyer, and contains all of the terms of a contract of sale, notwithstanding the fact that the terms used in the memorandum are abbreviated technical trade terms, unintelligible to persons not engaged in the trade, but familiar to, and well understood throughout, the trade and by the parties to the contract.

2. Section 4 of the Sales Act of May 19, 1915, P. L. 543, is complied with where the memorandum for the sale of sugar states the terms of sale as "basis 22.50," and where such term has a peculiar trade meaning universally known in the sugar trade, and known to the parties to the contract, such trade meaning being as follows: "The price of fine granulated sugar packed in bulk in barrels or 100-lb. bags is 22.50 cents per pound, and the price of any other grade or package is determined by adding to or subtracting from said price the amount of the now existing standard trade differential applicable to such other grade or package."

3. The meaning of technical trade terms used in a written memorandum of sales may be proved by parol, for the reason that such meaning enters into the contractual obligation through the trade usage and the practice of the parties, and is impliedly and inherently a part of the contractual obligation without being defined and expressed at length therein.

Statutory demurrer. C. P. Lackawanna Co., Nov. T., 1921, No. 829.

Thomas Reath, Jr. (of Philadelphia), H. S. Drinker, Jr. (of Philadelphia), and Reese H. Harris (of Knapp, O'Malley, Hill & Harris), for plaintiff. Cornelius Comegys, for defendant.

MAXEY, J., Dec. 7, 1922.-This is a suit in assumpsit, in which the plaintiff claims to recover from the defendant the sum of $21,116.37, with interest thereon, upon a cause of action founded upon an alleged contract for the sale of goods, to wit, a large quantity of sugar. The statement sets forth, inter alia:

(Par. 3.) That John Quackenbush & Son (thereinafter referred to as "broker") was, on the dates thereinafter mentioned, a merchandise broker, with offices in Scranton, Pennsylvania.

(Pars. 4 and 5.) That said broker was duly authorized by plaintiff and defendant, to the knowledge of each other, to make on behalf of each the contracts thereinafter referred to. Said statement referred to seven specific contracts for the purchase from the plaintiff by the defendant of a total of 345 barrels of sugar.

(Par. 6.) That, pursuant to said authority, the broker, on or about the dates set forth in the statement, made and effected the contracts set forth in the statement.

(Par. 7.) That, pursuant to said authority, said broker, on or about the dates set forth, made and executed on behalf of plaintiff and defendant certain sales memoranda evidencing the terms of said contracts. Copies of said sales memoranda are attached to the statement, marked Exhibits 1-7.

(Par. 8.) That said broker delivered to plaintiff and defendant copies of each of said sales memoranda.

(Par. 9.) That plaintiff and defendant each respectively approved and ratified the action of the broker in effecting said contracts.

(Par. 10.) In the sales memoranda attached to plaintiff's statement appears the word "assortment." Plaintiff's statement sets forth that by the word "assortment" "was meant the specification of grades of sugar and kind of