25, 1919, when he returned to Pennsyl- in this case-two years from May 21, vania. On Aug. 24, 1918, a warrant 1918. The origin of the phrase indiwas issued, charging him, as one of the cates that when first used it applied to clerks in an election district of the 16th persons escaping from the scene of Ward of Scranton, in the primary elec- their crimes into another jurisdiction so tion of May 21, 1918, with offences as to avoid arrest and prosecution. In against the election laws of Pennsyl- the course of time, however, the use of vania. The warrant was returned "defendant not found."

the phrase has been enlarged and extended to meet new conditions. The

Dec. 17, 1918, one of the county de- Supreme Court of the United States in tectives made an affidavit to the effect the case of Roberts v. Reilly, 116 U. S. that a warrant was placed in his hands 80, has definitely settled the meaning to charging Noone with violation of the be given to the phrase. We quote from election laws of Pennsylvania, and that the opinion: "To be a fugitive from diligent search had been made for justice in the sense of the Act of ConNoone throughout the County of Lack-gress regulating the subject under conawanna, where he could not be found, sideration, it is not necessary that the the detective believing that Noone was party charged should have left the state a "fugitive from justice." On presen-in which the crime is alleged to have

indictment

an been committed, after tation of the affidavit, and on the same day, the court ordered the district attor- found, or for the purpose of avoiding a ney to submit the indictment charging prosecution anticipated or begun, but Noone with violating the election laws simply that, having within a state comand with conspiracy to the December mitted that which by its laws constitutes grand jury. On the next day Noone a crime, when he is sought to be subwas indicted. Noone has since been dis-jected to its criminal process to answer charged from the army and is now re- for his offence, he has left its jurisdicre-tion and is found within the territory of siding in Lackawanna County. another."

The defendant Noone, of course, was not a "fugitive from justice" in the pop- The extract above quoted is the basis ular acceptation of the meaning at- of the text adopted in Cyc. Am. & Eng. tached to that phrase. He was drafted Ency. of Law and in other text-books, into the army, and was taken with thou- and has been followed by the courts of sands of others to a camp outside of many states. And so it follows that a Pennsylvania to be trained for active person about to be charged with an ofmilitary service. He was absolutely and fence against the laws of Pennsylvania exclusively under the supreme control may have occasion to leave the State for of the Federal authorities, and was be- legitimate reasons. He may have to yond the reach of any process of the leave Pennsylvania for Colorado ог state of his domicile. In the affidavit California for the benefit of his own which was the basis of the order di- health, or that of his family, by order recting the submission of the indictment of his physician; or it may be that busito the grand jury, the phrase "fugitive ness enterprises demand his presence in from justice" could have been omitted some other state, or in Europe, for a in this case with much propriety, in long period of time; or, as in the case at view of the reason for Noone's absence bar, he may be in the military service of from the State. All that was necessary the United States. Wherever he may

to aver was that he was absent from the be, and whatever might by the reason State and could not be found within the for his absence, he will not be allowed jurisdiction. The reason for his ab- to escape the lawful demand of the sence was not so material as the fact State because of his absence. that he was absent from the State. It will be noticed at once that the main, if not the sole, purpose of the order submitting the indictment to the grand inquest was to prevent the running of the statute of limitations, which is two years

Now, April 3, 1919, the rule to quash the indictment is discharged.

der

Same day, the rule to vacate the orsubmitting the indictment to the grand jury is discharged.

C. P. of

Lancaster Co.

Burkholder v. Hess

Vendor and vendee-Machine sold to be "satisfactory"-Time when vendee to be satisfied-Evidence.

Where a vendor gives a receipt for the purchase money for a traction engine, which receipt contains the words "tractor has to be satisfactory or money will be refunded," these words are part of the contract and enforceable as such, and such stipulation being decide whether it was satisfactory parol evidence is admissible to show the intent of the

silent as to the time when the vendee was to

parties as to such time.

In such case, it having been shown that the vendee was satisfied with the tractor at a test made on a certain date as agreed upon, he could not subsequently reject it, and a rule to open judgment entered for the pur

chase money should be discharged.

Rule to open judgment.
John A. Nauman, for rule.
Amos E. Burkholder, contra.

April 17, 1920, Hassler, J.-On October 22, 1918, the defendant paid for a traction engine with some attachments, which he had previously ordered from the plaintiff, and which was then on the cars at Lititz, Pa., by giving him $285.00 in cash and a negotiable note for $1,000.00, containing a warrant of attorney to confess judgment. The note was payable at the Lititz Springs National Bank in sixty days. It was discounted by the bank and renewed several times until July 21, 1919, when the note upon which this judgment was entered was given to the plaintiff payable in thirty days. At the time the cash and note were given to the plaintiff he gave the defendant a receipt which contained the words, "tractor has to be satisfactory or money will be refunded."

The defendant now seeks to have the judgment opened, giving as the reason why it should be done, that the tractor is not satisfactory because it is difficult to start and would overheat and is defective in many ways. The defendant, in the depositions taken to support his petition, only attempts to show that it was not satisfactory because it became overheated when used.

The plaintiff by a number of witnesses proved that it did not become more overheated than is usual with traction engines, except when it was regulated to make thirteen hundred revolutions a minute. This was too fast, as it was so constructed that it should have been regulated to make but nine hundred. The defendant retained possession of and has used the tractor since October, 1918. The testimony is conflicting as to whether he offered to return or reject it because it was not satisfactory, or if he did make such offer, when it was made. We are inclined to the opinion that the testimony shows that the tractor operated properly, and that if it did not, the defendant waived his right to object to it on that account because he did not reject it and return it promptly. But we do not think that these matters are material in disposing of this rule, as the uncontradicted testimony shows that the defendant was required to reject the tractor, if not satisfactory, on November 14, 1918, and this he did not do.

The words "tractor has to be satisfacing in the receipt are part of the contract tory or money will be refunded" appearbetween the parties, and are to be given the same effect as though they appeared in the contract of sale. This written stipulation cannot be avoided or contradicted unless something has been omitted from it through fraud, accident or mistake: Rhoads Est., 189 Pa. 460; Ogden v. Traction Co., 202 Pa. 480. This rule, however, does not prevent the use of parol testimony to supplement the written words when they are incomplete. They are incomplete in this case in that they do not state when the vendee was to decide whether it was satisfactory.

&

Where a written agreement is silent as to the time during which it is to continue in force, parol evidence is admissible to prove the intent of the parties as to such time: Real Estate Title, Insurance Trust Co. v. Lambeth, 125 Pa. 549; Russel v. Pittsburg, etc. Railway Co., 17 Sup. 195. Where time of payment is not stipulated in a written agreement, a parol contemporaneous agreement fixing the time of payment may be proven : Horner v. Horner, 145 Pa. 258. Where no time of delivery is mentioned in a written contract of sale of goods, the purchaser can show a verbal contempo

raneous agreement fixing such time: that he was to be satisfied with it at that Meyercord Co. v. Eckert, 22 York 98. time, or if not satisfactory then, to reParol evidence is admissible to explain ject it. Having failed to reject the tracthe meaning of the parties where the tor, the defendant is liable for its paywriting does not contain the entire con- ment and the rule to open the judgment tract: Fenner v. Smyth, 62 Sup. 538. is therefore discharged. Rule discharged.

The defendant testified that he bought the tractor and was to make settlement for it after a demonstration of it, but that the plaintiff came to his house and stated that he did not have money sufficient to take the tractor from the railroad company, and requested that he pay for it then, so as to enable him to get possession of it. His wife testified that when the note was given, "We did not want to give a note until after the demonstration because we said we would like to see it work first before we paid it. * He said, 'I will satisfy you *

*

*

Practice, C. P.-Practice Act of 1915–
Reply to Affidavit of Defense.

Under the Practice Act of 1915 it is not necessary for the plaintiff to file a reply to the affidavit of defense unless it alleges a swer is no admission of the truth of the facts

averred. The court would therefore be with-
out authority to enter judgment on the
pleadings for the defendant although the af-
fidavit of defense alleged facts which if true
such action the record of the prior case must
would make the case res adjudicata.
be before the court in a regular way.

Before

* I will put this on that you can be sat-set-off or counter-claim, and failure to anisfied. * * * If the tractor does not work * * * then I will take it back.'" The plaintiff testified that the agreement was that defendant was to have a demonstration and be satisfied before payment, and that if he was not satisfied with it at the time of the demonstration, plaintiff would take the tractor back, and return the cash and note to the defendant.

Rule to open judgment.

H. Robert Mays and Charles W. Matten, for plaintiff and rule.

George J. Gross, for defendant.

The demonstration took place on November 14, 1918. Several witnesses testified that it became overheated, and others that it did not do so, more than is us- February 21. 1920, Wagner, J.ual with tractors. The defendant at first Plaintiff brought suit against the detestified that he objected to it because it fendant for the recovery of $441. He heated up too quickly, but was satisfied claimed that he had been employed by with it and decided to keep it. Harry E. the defendant as a farm helper at the Sheeler testified that the defendant ex-rate of $1.50 per day for the months of pressed his satisfaction with it, and said April, May, June, July, August, Sephe would keep it. Both the plaintiff and tember and October, and for the redefendant testified that the plaintiff maining four months at the rate of $30 wanted the defendant to permit him to per month, and that the amounts thus sell the tractor to another person, and agreed upon had not been paid. offered to get another one for the de- The defendant, in his affidavit of defendant, but that the defendant refused fense, inter alia, averred that he was to permit this, and expressed his satis- plaintiff in an action of ejectment faction with it and retained it, and has brought in Montgomery County, Pa., used it more or less from that time to against Fillippo Cierri, the present plainthis. Two witnesses testified that de- tiff, in the course of which action the fendant subsequently told them that the said Fillippo Cierri entered the defense tractor was working satisfactorily. Un-that Antonio Madonna, the then plainder this state of facts it is clear that the tiff (the defendant in this case), had redefendant accepted the tractor at the tained the wages which are the subject time of the demonstration, November of the present suit, had applied the same 14, 1918, and could not subsequently re- on account of the purchase money of the ject it, as it was part of the agreement land for which ejectment had been

Allegheny Co.

Commonwealth v. Sutton

brought, and for which Madonna had Q. S. of
the deed and Cierri the possession, and
that the jury in that suit found in favor
of the then plaintiff. Antonio Madonna.
That thereby the said claim for wages is
res judicata.

Motor

Vehicles-Stopping-Highways -Indictment-Act of June 30, 1919, P. L. 678.

A proceeding by indictment for the offense of refusing to stop a motor car at the request of an officer of the State Department of Highways, is coram non judice, and

void, there being no such offense at common law, and no statutory provision that would

support an indictment.

The sufficiency of the affidavit in the averment of the facts alleged to raise the issue of res judicata was not questioned. Under the Practice Act of 14 May, 1915, it was not necessary for the plaintiff to reply to this defense. Section 15 of the Act provides that it is only when the defendant in his affidavit sets up a set-off or counter-claim that the plaintiff within fifteen days from the 30, 1919, P. L. 678, such offense is defined service of the affidavit of defense upon and made punishable by fine to be collected him shall file an answer under oath by process of summary conviction, subject to the right of the accused, at his option, to which shall be called a plaintiff's reply. Failure to answer defendant's affidavit of defense is, therefore, no admission by the plaintiff.

not recover.

* *

*

By sections 26 and 33 of the Act of June

be tried by a judge of the court of quarter sessions, rather than by the magistrate, general jurisdiction to the quarter sessions upon entering security; but this gives no to be exercised by indictment.

H. A. Scragg, Assistant District At

R. H. Holgate, for defendant.

February 25, 1920, Newcomb, J.,Defendant was held to bail and thereupon indicted for refusing to stop his motor car at the request of an officer of the State Department of Highways.

When this case was called for trial, defendant's counsel moved for judg-torney, for Commonwealth. ment on the pleadings, contending that the record of the Montgomery County case would show the facts as contended for in the affidavit of defense. That. therefore, under Jackson et al. v. Myers, 260 Pa. 488, where, on page 491, the Court says: "It would be vain to empanel a jury in a case after it had been At common law there is no such ofdetermined as a matter of law that fense. The indictment therefore can could plaintiff only be supported by statute. AdmittedHad the case gone to jury trial, and had ly the only statute on the subject is that plaintiffs supported their averments by of June 30, 1919, P. L. 678. The ofproof, a compulsory non-suit would fense in question is defined by section have been inevitable; hence, it was un- 26. But that prescribed no penalty for necessary to go through that formality," violation. For the penalty, reference it was for the Court to enter judgment must be had to section 33 where it is for defendant as a matter of law upon grouped with other offenses, all of the pleadings. The pleadings in the which are made punishable by fine of not Montgomery County case were, how-less than ten nor more than twenty-five ever, not before the Court in a regular dollars, to be collected by process of It is only after the pleadings in summary conviction: Subject, however, both cases are brought before the court, to the right of the accused at his option that the question of res judicata can be- to be tried by judge of the court of quarcome a question of law. Had the rec-ter sessions, rather than by the magisord in the Montgomery County case trate, upon complying with certain probeen in evidence, we then might have been empowered to render judgment for the defendant: Finley v. Hanbest, 30 Pa. 190; Bickford v. Cooper & Co., 41 Pa. 142; Goodhart v. Bishop, 142 Pa. 416.

Plaintiff's rules to open the judgment entered by the Court for defendant in this case are made absolute.

visions for security. But this gives no general jurisdiction to the quarter sessions to be exercised by indictment; and even if it did there was no attempt to utilize such option. The Act is voluminous. Violation of some of its provisions is made punishable as a misdemeanIn all such cases indictment will lie.

or.

Evidently the magistrate was laboring fendant contend that there was no eviunder some confusion of mind as be- dence upon which to base a verdict of tween two groups of offenses. The re- guilty. sult is that the proceeding here is coram non judice and void.

The rule to show cause is made absolute and the indictment quashed.

Q. S. of

Lancaster Co.

Commonwealth v. Leventhal

Criminal law

It was admitted that the defendant had filed a petition in voluntary bankruptcy on the 22d day of October, 1918. It was clear from the evidence that the defendant just prior to the bankruptcy proceeding had disposed of a very large stock of goods. The only question was whether those goods were disposed of with intent to defraud his creditors.

The intent to defraud is rarely shouted from the house tops. Seldom is it

Bankruptcy-Disposing susceptible of direct proof. Usually every artifice known to the defendant is

of goods to defraud creditors-Evi- used to conceal such intent. The fraud

ulent design must, therefore, be determined from the surrounding circum

Motion in arrest of judgment and for potatoes from this same company within new trial.

L. S. Levin and J. W. Taylor, Assistant District Attorney of Commonwealth of Pennsylvania, for Commonwealth.

M. B. Lesher and R. D. Laird, for de

fendant.

a period of ten months. Other large purchases were made in the same way about this time. Before any urgent demand was made for payment and even before

some of the bills became due he went into voluntary bankruptcy. The schedules show that he had practically no debts except for the goods which he had purchased shortly prior thereto.

May 10, 1919, Snyder, J.-The defendant. Nathan Leventhal, was tried. In addition to this testimony the eviand convicted under the Act of Assem-dence shows that one car load of potably approved April 22, 1903, P. L. 242. toes was shipped to Verona and that he This Act provides, inter alia, as follows: endeavored to employ a friend, Sam "Any person * * * who shall se- Harris, to go to Verona and sell them at crete, convey or otherwise dispose of "any price." In addition to this he sold any of his property, or the property of twenty-three (23) crates of grapes to any other person, with intent to defraud Sam Harris at the rate of fifty (50) any creditor * * shall be guilty cents per crate. It is true Harris testifies that the grapes were "not extra, a little bad," but they were the same grapes that the defendant had purchased but a few days before and agreed to pay therefor, and that the regular market price was from $2.25 to $2.40 per crate.

*

of misdemeanor, etc."

The defendant has made a motion in arrest of judgment and for a new trial. The reason urged at the argument upon this motion was that the court erred in refusing to instruct the jury to find a verdict of not guilty. Counsel for de

The testimony also showed that on