The trial judge considered that he was

"Contract-Sale-Delivery- Delay bound by the authority of Georgia, Flor- Judicial notice. Where a contract for ida and Alabama Ry. Co. V. Blish the sale of pig-iron, made in BirmingMilling Co., 241 U. S. 190, decided in ham, Alabama, on April 16th, provided 1916, in which the opinion of the Su- for 'shipments during April and May,' preme Court of the United States was delivered f. o. b. Tacony, Philadelphia, delivered by Mr. Justice Hughes. In that Pennsylvania,' and the iron was shipped case the court decided, inter alia, that, no on April 30th, but not tendered to Tamatter what the form of suit in a state cony until Dec. 24th, the purchaser is court might be, the bill of lading (which justified in refusing to accept the iron in was identical with the one under which the absence of an explanation as to the the plaintiff in this case shipped her cause of the delay. In such a case the goods) was controlling, and that suit court will take judicial notice of the dismust be brought within two years and tance between Birmingham and Tacony one day, or a reasonable time thereaf- and of the time which, by any ordinary ter, from the time the goods should have means of transportation, would be conbeen delivered. sumed in sending goods from one point to the other, and will determine as a matter of law that the unexplained delay was wholly unreasonable."

The court in banc, upon the motion to take off the non-suit, is of opinion that in this interpretation the trial judge was right. The interpretation of this clause In the opinion of the court in that of the bill of lading is clearly within the case (page 13) the following language province of the Federal courts, and the was used: "The court rightfully took opinion was that of the Supreme Court judicial notice of the distance between of the United States, which undoubtedly Birmingham, Alabama, and Tacony, had the right to interpret this clause of Pennsylvania, and of the time which, by the bill of lading; and the decision of any ordinary means of transportation, that court that the form of action does would be consumed in sending goods not matter is controlling upon us. This, from one point to the other. The conwe think, disposes of the plaintiff's conclusion could not be other than that eight tention that no conversion took place un- months was a wholly unreasonable time til the letter demanding the goods from for such transportation, and the delay in the railroad company was sent to them making the delivery imposed upon the and a reply received containing a per- seller the burden of showing that the emptory refusal to deliver the goods. cause of the delayed dleivery was not under his control. No attempt was made to meet this demand, and the court propertly entered a non-suit."

Another question in the case is whether suit was brought within a reasonable time after the expiration of two years and one day after failure to make delivery. The language of the bill of lading is: "Suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed."

We have two cases in the Superior Court of Pennsylvania upon what constitutes a reasonable period in cases similar to the one at bar. One case is SlossSheffield Steel and Iron Co. v. Tacony Iron Co., 54 Pa. Superior Ct. 11, in which the opinion of the Superior Court was delivered by Orlady, J. (now President Judge), July 16, 1913. In that case the head-note is as follows:

In the case of Coroneos Brothers v. Pennsylvania R. R. Co., 75 Pa. Superior Ct. 222, in which the opinion of the court was delivered by Linn, J., Sept. 19. 1920, the head-note is as follows:

"In an action by a shipper against a railroad company for the unauthorized delivery of freight, it appeared that the bill of lading provided that all claims must be made within four months after delivery of the property, but in case of failure to make such delivery, then within four months after reasonable time for delivery had elapsed. An unauthorized delivery of the property was made by the warehousing company, with whom it was stored pursuant to a provision in the bill of lading, but no claim for loss was presented until nearly eight months af

ter the arrival of the property at the destination.

"Under such circumstances, the claim for the failure to deliver was not made in time, and judgment was properly entered in favor of the defendant."

In that case the court said (page 225): "Since no claim was made until Feb. 11, 1918, for the failure to deliver or the misdelivery, the claim was not made in time.”

In the case at bar the goods were shipped on Nov. 21, 1917, and the letter and demand on which the plaintff founds the present action of trespass in the nattire of trover and conversion was writ

Criminal law-Motor vehicles-Bail

ten May 7, 1920. Suit was not brought until May 29, 1920. (The summons was served June 2, 1920.) So that six months and ten days elapsed between a time two years and one day after the shipment of ments-Refusal to furnish descriptions the goods and the bringing of the suit.

Even if thirty daye be reckoned as a-Act 30 June, 1919, P. L. 702-Pracreasonable time for transportation, the tice, Q. S.-Motion in arrest of judgplaintiff allowed ten days in December

and all of January, February, March, ment--Insufficiency of evidence-ConApril and May to elapse before she verted to rule for new trial. brought suit. This the trial judge considered, and we take the same view, was an unreasonable time for her to wait to assert her rights, which are governed by the bill of lading.

The question of the reasonableness of the condition in the bill of lading was argued before the court, and it was stated that the Interstate Commerce Commission had held this particular provision of the bill of lading to be unreasonable. We do not, however, feel that we are bound by the Interstate Commerce Commission, because the District Court for the Northern District of Georgia, in the case of Leigh Ellis & Co. v. Payne, 274 Fed. Repr. 443, held that the decision of the Interstate Commerce Commission did not annul the rights of parties under bills of lading issued prior to the decision of the Interstate Commerce Commission, and, accordingly, that the two-year and one-day period for bringing suit was valid. This decision was affirmed by the Circuit Court of Appeals for the Fifth Circuit. See 276 Fed. Repr. 400.

The attention of the court has been called to the recent decision of the United States Circuit Court of Appeals for the Second Circuit in the case of the

The bailee of a motorcycle, held under lease with option to purchase, is not punishable under Act 30 June, 1919, P. L. 702, for failure or refusal to give to the bailor, after

forfeiture of the leave and re-possession of the machine, the descriptions of such motor

cycle specified in the Act.

A motion in arrest of judgment can be granted only upon defects apparent on the tion of insufficiency of evidence. Where, however, the evidence does not warrant a into a rule for a new trial and as such made absolute.

face of the record, and never on an allega

conviction the motion should be converted

Motion in arrest of judgment.

Wm. B. Bechtel, for defendant and motion.

Rothermel & Mauger, conrta.

Endlich, P. J., November 21, 1921.— The defendant in this case was indicted under Act 30 June, 1919, P. L. 702. That statute provides, in Sec. 2. "That from and after the passage of this act, it shall be unlawful for any person to sell, convey, transfer, or pass title to any used motor vehicle, unless he shall, at or before such sale, conveyance, transfer, or passage of title, deliver to the vendee. buyer, or transferee thereof, a full de

scription of such used motor vehicle, in It will be noted that what is prohibited

and punished by the Act of 1919 is the selling, conveyance, transfer or passing of title to any used motor vehicle without observing the directions of the statute. All of the words employed except the word "transfer" indicate that the command of the statute is addressed to the

duplicate," etc., and in Sec. 10 makes a violation of any of the provisions of the act a misdemeanor, punishable upon conviction by a fine or imprisonment or both. On the trial of the case there was no conflict in the evidence. The defendant, in May, 1920, had received from the prosecutor a motorcycle under a contract of lease or hiring providing for weekly owner of the machine when disposing of payments of $10 each. Thereupon the defendant, being rightfully in possession, secured from the State Highway Department a license in his name to operate the motorcycle. In April, 1921, the defendant was in arrears in his payments for the motorcycle, and was also indebted to the prosecutor for repairs to the same. On April 23 he executed and delivered to the prosecutor a paper transferring his interest in the motorcycle, which paper is as follows:

his right of property therein, and the act,
being highly penal, falls under the rule
It seems very
of strict construction.
clear that the word "transfer" in the con-
nection in which it is used takes its
meaning from the words with which it is
associated. The rule "noscitur a sociis"
is one of construction which is well rec-
ognized in our law and for illustrations
of which it is enough to refer to Com, v.
Navigation Co., 66 Pa. 81, 83, and Tag-
gart v. Com'th, 102 id. 354, 364. It is,
however, at least equally clear that, at
the time of the transaction evidenced by

"Reading, Pa., April 23, 1921. "I. Clarence Folk, of 1716 No. 3rd the paper of April 23 and of the proseSt.. Reading, Pa., hereby make state-cutor's repossessing himself of the mament, that I transfer the installment ac- chine, the defendant was not the owner count Excelsior 1920 model motorcycle of and could not pass a title to it. He No. 103,516, and side car, over to my was the bailee of the prosecutor with an brother, Hiester Folk, of same address, with the understanding that he make option to buy. The owner of it was the payment in full before April 27, 1921, be the defendant's liability, he cannot be prosecutor himself. Whatever else may also repair bill of March 7., 1921, said to have committed the crime deamounting to $95-45: otherwise the ma-clared and punished by the Act of 1919.

chine be forfeited.

"(Signed) Clarence C. Folk." In witness thereof:

Thomas Bohn.

If what has been said is corrct, it follows that the verdict of conviction rendered by the jury cannot properly be sustained. But the motion in arrest of Hiester Folk, named in this paper, did judgment hardly reaches the needs of not make the payments designated the case. It can be granted only upon therein before April 27, 1921, nor at any defects apparent on the face of the rectime thereafter, nor did he or the de-ord, and never upon an allegation of infendant at any time, before prosecution sufficiency of evidence: see cases cited in or since, offer to make any payment on account of said indebtedness. The prosecutor on the basis of this default re

possessed himself of the machine, and in pursuance of the transfer as set forth in the paper of April 23, 1921, and after failure of Hiester Folk to make the payments specified, demanded of the defendant a written statement verified by affidavit as prescribed in Sec. 2 of the Act of 1919. The defendant refusing to deliver the descriptions to the prosecutor, this prosecution was brought, the verdict rendered by the jury being one of guilty.

Com. v. Cotter, 5 Berks Co. L. J. 254, at p. 260. Under these circumstances it ent adoption by Judge Woodward in seems legitimate to resort to the expediGring v. Burkholder, 2 Woodw. 82, of converting one application into another and granting the latter-a practice famil

iar in this court.

And now, Nov. 21, 1921, it is ordered that a rule for a new trial be entered as of June 17, 1921, nunc pro tune; that the motion in arrest of judgment be denied ; and that the rule for a new trial be made absolute.

C. P. of

Zanes v. Zanes

Divorce Decree

Fayette Co.

Annullment

Fraud and imposition-Concealing residence of respondent--Notice.

It appears of record satisfactorily to the court, and we find the facts to be, that for a number of years the parties had been living at Fort William, Ontario, Canada, and that on or about July 1, 1913, the libellant came to Kentucky, and later to Connellsville, in this county, where he since has resided, working at

A decree of divorce will be annuled, on the Scottdale, a short distance away; that

grounds of fraud or imposition upon the respondent, and in some respects upon the court, where service of the subpoena was had tified before the master that the respondent then was living in Canada, and never had left there, when as a fact the libellant well knew that the respondent then was living in Pennsylvania; where the libellant failed to make known the respondent's actual place the time and place of taking testimony could be served personally on the respondent, when the libellant knew that the respondent could be found in this State; where the respondent had no actual notice or knowledge of the time and place of taking testimony, and was not present at the hearing; and where the libellant proceeded with the case, without notice to the respondent, after having rep

by publication only; where the libellant tes

of residence so that the master's notice of

the parties are the parents of six children, all of whom now are of age and are self-supporting, except the youngest, who is eleven years old and lives with its mother; that during his absence from Canada the libellant contributed to the support of his wife and child, who still continued to live there; that on or about March 25, 1921, the respondent received a copy of a newspaper containing a notice that the libellant had made an application here for a divorce from the respondent; that the respondent came to Scottdale and called at the place where the libellant was employed on or about April 6, 1921, but that the libellant refused to see her; that on or about April 14, 1921, the respondent made an information against the libellant, charging Sur rule to show cause why decree of him with desertion and non-support, and divorce should not be revoked.

resented to the respondent that the case had been or would be discontinued and that

no further action would be taken therein, which caused the respondent to fail to have an appearance entered for her in the action or to give any further attention thereto.

absolute.

Rule

Fred D. Munson, for libellant. Meyer Morris and N. W. Rosenberg, for respondent.

following a hearing thereon, before Justice of the Peace W. M. Kennel, on April 17, 1921, the libellant was committed to jail in default of bail; that on the following day the case was compromised by the parties on the libellant's Van Swearingen, P. J., April 18, 1922. agreeing to pay his wife the sum of $60 -A libel in divorce on the ground of per month for the support of herself and desertion was filed on December 16, child, the libellant at that time represent1920, and the case was so proceeded in ing to his wife that the divorce case had that, on May 24, 1921, a decree of di- been or would be discontinued, and that vorce was entered. It was set forth in no further action would be taken therethe libel, which was sworn to on Decem- in; and that relying on those statements ber 15, 1920, that the residence of the reof her husband the respondent did not spondent then was unknown, and that cause an appearance to be entered for her last known address was No. 117 her in the divorce action and did not Archibald Street, Fort William, Pro- give any further attention thereto, but vince of Ontario, Dominion of Canada. thereafter lived as a domestic in the Service on the respondent was had by home of Walter Stauffer in Scottdale, publication only. On June 27, 1921, on and that her husband from that time on petition of the respondent, a rule was had full knowledge of her whereabouts. granted on the libellant to show cause why the decree of divorce should not be revoked, it being alleged in the petition that the decree had been procured by fraud on both the respondent and the

court.

Thereafter, on May 3, 1921, on motion of libellant's counsel, a master was appointed to take testimony in the divorce case, and report the same, together with his opinion thereon, to the court. The master set May 12, 1921, as the

time, and Connellsville as the place, for prothonotary for five days shall be suffitaking the testimony, and to a notice cient." We are of opinion that the testithereof placed in the hands of the sheriff mony of the libellant, given before the for service, a return of n. e. i. was made master, that the last known address of and a copy thereof was posted in the the respondent was Fort William, Ontaprothonotary's office on May 5, 1921, rio, Canada, and that she never left Canand remained so posted until the day of ada, and the failure of the libellant to hearing, no personal service of the notice make known the respondent's actual being had on the respondent, although place of residence so that the master's the libellant well knew she then was liv- notice of the time and place of taking ing at the Stauffer home in Scottdale, testimony could be served personally but six miles from the place set for tak- on the respondent when he knew she ing the testimony, and the respondent then could be found in this state, had no actual notice or knowledge of and within six miles of the place the time and place set for hearing, or that testimony was to be taken, and she was not present at the hearing.

At the hearing before the master the libellant testified, inter alia, as follows: "Q. What is the present residence, if you know, of your wife?

where the testimony was to be taken, and his proceedings with the case, without notice to the respondent, after having represented to the respondent that the case had been or would be discontinued, constitutes such fraud or imposition upon the respondent, and in A. Last known address was 117 some respects upon the court, as warArchibald Avenue, Fort William, Prov-rants the court in setting aside the deince of Ontario, Dominion of Canada. cree of divorce heretofore entered. Q. Did she ever leave Canada? A. She did not."

the Friday before.

"That a decree of divorce may be set aside for fraud or imposition admits of no doubt. The power is equitable, however. The ground of its existence is exceptional, and should appear of record so that it may clearly appear that it is not merely an arbitrary exercise of discretion." Catts v Catts, 35 Pa. Superior Ct., 293. There are many other cases to the same effect, each with its own distinct and peculiar facts and circumstances.

And now, April 18, 1922, for the reaQ. Was it the day Mrs. Zanes called sons and upon the grounds stated in the you up?

A. No, Mrs. Zanes called me up on the day she landed in Scottdale along about the first of April.

opinion herewith filed, the rule to show cause is made absolute, and the decree of divorce heretofore entered in this case is set aside, vacated, revoked, and an

Q. Mr. Zanes, why did you go to ulled. Atlanta?

A. I just took a trip, I did not want to be arrested, and I went away for a weak."

The rules of this court provide that

C. P. of

Lancaster Co.

Oliver S. Schaeffer, Trustee in

the master "shall not proceed to take Bankruptcy of Charles F. Altland

v. Chas. W. Altland, (No. 1)

Bankruptcy-Insolvency-Transfer_of

depositions until he is satisfied, by due proof, that five days' notice of the time and place of taking the same has been given to the respondent, when he or she can be found within the state; if the respondent cannot be so found, then proof that such notice has been posted Under the present bankruptcy law a debtor in a conspicuous place in the office of the is insolvent when the aggregate of his pro

real estate-Preference-Equity.