Moore v. Moore.

v. Douglass, 81 Iowa, 258, 47 N. W. Repr. 92; Am. & Eng. Cas., 1912 C, page 16.

We follow the reasoning of the learned master and hold that the resumption of marital relations had only evidential value and that libellant's statement that she had dropped the case temporarily meant that her intention was to suspend the application for relief upon the condition that the respondent treat her properly as he promised, and that, by his failure to keep that promise or condition, he has lost any benefit that might have accrued to him by reason of what libellant did in reliance upon that promise or condition.

We will, therefore, not follow the case of Freeston v. Freeston, 42 Pa. C. C. Reps. 6, 23 Dist. R. 219, decided fourteen years ago, but will be in accord with the theory of the law as decided in the cases supra.

The exceptions are hereby allowed and the divorce is granted.

Commissions of Notaries Public.

Notaries public-Recess appointments-Confirmation by Senate-Special session-Date of lifting commissions and filing bonds—Acts of April 14, 1840, P. L. 334, and April 4, 1901, P. L. 70.

Notaries public who have been appointed during a recess and whose appointments have been confirmed by a special session of the Senate have, under the Act of April 14, 1840, P. L. 334, at least the space of thirty days after their confirmation to lift their commissions and file their bonds.

Department of Justice. Opinion to Mr. G. H. Hassler, Chief of Commission Bureau.

GOLLMAR, Dep. Att'y-Gen., Feb. 16, 1926.-You asked for an opinion as to the exact time within which notaries appointed during the recess of the Senate and confirmed by this Special Session of 1926 must lift their commissions and file their bonds.

Section 1 of the Act of April 4, 1901, P. L. 70, provides as follows: "From and after the passage of this act notaries public appointed by the Governor during the recess of the Senate shall each receive a commission which shall expire at the end of the next session of the Senate."

Section 2 of said act provides as follows: "When notaries public appointed by the Governor during the session of the Senate, and those appointed under the provisions of the 1st section of this act, are duly confirmed by the Senate, they shall each be entitled to receive a commission for the term of four (4) years, to be computed from the date of such confirmation."

Section 3 of the Act of April 14, 1840, P. L. 334, however, provides that the commission of any notary thereafter appointed who, for the space of thirty days after his appointment, neglects to give bond and cause the same and his commission and oath to be recorded, shall be null and void.

In accordance with a ruling made by C. W. Stone, then Secretary of the Commonwealth, it was held that the thirty days' limitation applies only to original appointments and to reappointments made after the expiration of a full term. This rule has been recognized by your department for more than thirty-five years and allows commissions issued during the recess of the Senate, when confirmed, to be lifted and the full-term bonds filed any time before the final adjournment of the Senate confirming the recess appointments. Notarial recess appointees are usually presented comparatively early in the long regular sessions of the Senate next succeeding the issuance of

Commissions of Notaries Public.

such recess commissions, and are usually confirmed more than thirty days before the final adjournment of the Senate. This gives notarial recess appointees, when confirmed, at least thirty days within which to file the fullterm bonds and lift the full-term commissions. But this session of 1926 is a special session, and because of the early adjournment of the Senate, determined for Feb. 18th, creates a different situation by reducing the time to one day less than thirty days.

It is possible for the Senate to delay confirmation until nearly the final adjournment, and in such case it would be impossible for Senate employees to certify to your department a separate confirmation notice for each notary as is the custom, and for your department to then prepare the commissions and bonds for the numerous confirmed notaries before the Senate adjourns. In such a case, notaries would be out of commission before the new commissions could issue, thus making ineffective and inoperative the purpose of the Senate's action and rendering null and void all recommissions for recess appointees.

Because of the possibility of this situation, the Act of April 14, 1840, § 3, P. L. 334, is controlling. The legislature, by the passage of this act, evidently intended that all notary appointees should have at least the space of thirty days after appointment to qualify.

I am, therefore, of the opinion that all recess appointees should have the full thirty days after confirmation (which is the date of appointment) in which to file the four-year bond and lift their four-year commissions. The date of the confirmation during the present session was Jan. 20th. I am, therefore, of the opinion that the last day in which to file the four-year bond and lift the four-year commission and otherwise qualify, in this case, is Feb. 19, 1926. All confirmation recess commissions not lifted on or before that date will thereafter become null and void.

From C. P. Addams, Harrisburg, Pa.

Catz-American Company v. Pennsylvania Railroad Company.

Assumpsit-Common carrier-Change in consignees-Misdelivery-Market value-Loss-Evidence.

Where a verdict was returned in favor of a defendant railroad company which had delivered a carload of raisins to an original consignee, although directed to deliver to another because the original consignee failed to pay the draft before the arrival of the car, a motion for a new trial was refused because plaintiff's evidence failed to prove that the misdelivery resulted in a loss to plaintiff at the time of the delivery and failed to show the market value of the raisins at the time of the delivery.

Motion ex parte plaintiff for new trial. C. P. Allegheny Co., Oct. T., 1922, No. 2854.

Before Shafer, P. J., Douglass and Cohen, J.J.

John E. McCalmont and J. Garfield Houston, for plaintiff.

Dalzell, Fisher & Dalzell, for defendant.

SHAFER, P. J.-The action is for the recovery of the value of certain Malaga raisins shipped by the plaintiff to Pittsburgh, consigned to themselves, and misdelivered by the railroad. It appears from the evidence that the goods were sold by the plaintiffs to Descalzi & Co., in Pittsburgh, about May 6th, and that while they were on the way, about May 26th, the sale to Descalzi was canceled by reason of their non-payment of a draft and the goods were

Catz-American Company v. Pennsylvania Railroad Company.

resold. The raisins arrived in Pittsburgh June 6th or 7th, and by mistake were delivered to Descalzi, who claims not to have known of the cancellation. While Descalzi was unloading the car on June 7th the mistake was discovered and the unloading was stopped, and the car was not finally unloaded until about June 16th or 17th, when the goods were all delivered to Descalzi upon his payment to the railroad company of $8984.25, which sum was paid by the railroad to the plaintiff upon an agreement that it should not prejudice the plaintiff's claim against the railroad to recover whatever additional amount they might be entitled to. The claim of the plaintiff is that the fair and reasonable value of the raisins in Pittsburgh on June 17th was 26 cents per pound, or $10,725, and the difference between that and $8984.25 represents the claim of the plaintiff. The sum already paid by the railroad to the plaintiff represents the value of the raisins at 22 cents a pound.

The plaintiff called the broker who had charge of their affairs in Pittsburgh, who testified that he represented the plaintiff in the matter of the sale of these raisins and as to his making a resale of the raisins on May 26th to the Pennsylvania Macaroni Company, and gave some evidence as to the price of such raisins, and said that the stock of raisins was very scarce and that he could not find another car to fill his order with, and that the nearest substitute for Malaga raisins to be had in the market was Muscatell raisins, and that the market value of those raisins in the middle of June was 26 cents, and that the Malaga raisins would command the same price. On cross-examination of this witness as to these sales, he was asked the price at which the sale was made on May 26th to the Pennsylvania Macaroni Company, and, under objection, he told that the price was 22 cents and also that the cars would not arrive in Pittsburgh for some seven to ten days thereafter. It further appeared on cross-examination that the witness derived his knowledge of the price of Mascatell raisins from the quotation sheet of brokers in Pittsburgh. The plaintiff then called a wholesale grocer, acquainted with the business of handling raisins, who also testified that Muscatell raisins, which were the only kind available and were similar in value to the Malaga raisins, were selling about June 16th for 26 cents and better a pound, and it appeared on cross-examination that the witness referred to job lots and not to carload lots. The reasons assigned for a new trial are substantially that the court erred in allowing plaintiff's broker, who conducted the transaction, to be asked the price at which he made the sale on May 26th, which he told of in chief, and also to the admission of the bills or invoices rendered by the plaintiff to the parties to whom it had sold the raisins. The burden was on the plaintiff to show that the raisins in question were worth more than it received for them from the railroad at the time of the conversion. There was evidence from which the jury might have found, as the defendant contended, that the conversion took place on June 7th, and other evidence from which they might have found that it took place anywhere from June 14th to 17th. All the evidence given by the plaintiff, as far as we can ascertain, as to the value of the raisins, was as to their value about the middle of June. If the jury believed the conversion to have taken place as defendant claims, on June 7th, they would have no evidence upon which to find a verdict for the plaintiff.

In this view of the case, the fact that the raisins were sold on May 26th for 22 cents a pound would have no bearing on the case and do the plaintiff no harm. We are not convinced, however, that it was error to allow the party to be asked on cross-examination what he had sold these raisins for two weeks before the alleged conversion. An offer on the part of the defendant to show the price at which the raisins had been dealt in by the plaintiff two weeks

Catz-American Company v. Pennsylvania Railroad Company. before the conversion would no doubt have to be rejected, but that is a very different matter from cross-examining a party who is claiming a high price for property when, as a witness, he is testifying to that price, which was substantially the case here, the witness being the broker in charge of the matter. The motion for a new trial is, therefore, refused.

From William J. Aiken, Pittsburgh, Pa.

Hoy et ux. v. Keystone Power Corporation.

Eminent domain-Power companies-Construction of poles-Damages— Excessive amount.

1. Damages to the amount of $4500 are excessive against a power company because of the planting of sixteen poles across a farm covering a distance of less than half a mile, with the wires thereon strung twenty-five feet above the surface of the ground.

2. In such case, witnesses should not be permitted to take into consideration in determining the damages the depreciation of the value of the farm because of danger by fire to the buildings and the danger to human life, livestock and crops because of broken wires and the like.

Appeal from award of viewers. C. P. Centre Co., Sept. T., 1924, No. 111. Spangler & Walker, for plaintiffs; Orvis & Zerbe, for defendant.

POTTER, P. J., 17th judicial district, specially presiding, Sept. 28, 1925.This case was tried before the Hon. Henry C. Quigley, the then President Judge of this court, shortly before his sudden and lamented death, before a jury, who rendered a verdict for the plaintiff in the sum of $5250. Reasons for a new trial were duly filed and a rule therefor was taken out, which the writer hereof was requested to hear because the Hon. Arthur C. Dale, the successor of Judge Quigley, was concerned at the trial as one of the counsel for the defendant.

Not having presided during the trial of the case, we must gather all our information relative to it from the records.

These plaintiffs were the owners of a farm of approximately 138 acres, located in the Township of Benner, which it is admitted was in a high state of cultivation. That subsequent to the 12th day of June, 1923, the defendant, by virtue of its corporate powers, erected a line for the transmission of its electrical current across the farm and through the fields of the plaintiffs, planting therefor sixteen poles, which were from 170 to 175 feet apart, covering a distance of 2810 feet, stringing thereon the necessary wires, which were about twenty-five feet above the surface of the ground. The proper legal steps appear to have been taken by the defendant to enable it to construct this line.

On application being made to court, viewers were appointed, who assessed the damages of the plaintiffs, by reason of the construction of this line, at the sum of $4500, from which award an appeal was taken, as hereinbefore stated.

A number of reasons for a new trial were filed; the one to which we shall specially address ourselves complains that the verdict is excessive. We have read over all the testimony and all the files in the case, and we are of the opinion that this point is well taken.

Hoy et ux. v. Keystone Power Corporation.

It seems to us highly improbable that by the planting of sixteen poles through this farm, which the plaintiffs estimate as being worth $20,000, and other witnesses much less, could be damaged to a sum of over one-fourth of its value by the erection of this line, covering a distance of 2810 feet, less than a half a mile.

Then, also, the damages awarded should be based upon the actual damage done to the property of these plaintiffs and not on what might occur in the future. In reading over the testimony, we note that some of the witnesses took into consideration, in fixing the damages, the depreciation of the farm because of danger by fire to the buildings, danger to human life, livestock and to crops, because of broken wires and the like. These items are, at best, purely speculative. They may never happen, in which event this defendant will have paid for things that have not occurred.

Should loss occur by reason of any of these items, full reparation must be made therefor, and can be enforced by legal remedy. We think this evidence should not have been permitted to have gone to the jury. It may have been an important factor in determining the amount of the verdict. And with the improved means of caring for electric lines, there is a strong probability of their non-occurrence.

We think the verdict is excessive and that the case should be retried. In view of our disposition of this reason, we deem it useless to enter into a discussion of the other ones.

And now, to wit, Sept. 28, 1925, the rule is made absolute, the verdict of the jury is set aside and a new trial is directed.

From S. D. Gettig, Bellefonte, Pa.

Sheirich Estate.

Collateral inheritance tax-Presumption of payment.

1. Where there is an attempt to collect a collateral inheritance tax on an interest which had vested forty-one years before, the lapse of time and the presumption that a mandatory obligation was not disregarded by both responsible parties and sworn officials creates the presumption that the tax has been paid and prevents collection.

2. A statute of limitation is a bar to the right of action, but a presumption of payment is simply a rule of evidence, which applies to the Commonwealth as well as any other suitor.

Adjudication. O. C. Lancaster Co., May T., 1924, No. 44.

Charles G. Baker, for estate; M. E. Musser, for Commonwealth.

SMITH, P. J., June 25, 1925.—It is alleged that collateral inheritance tax has not been paid on a one-third undivided interest in real estate which vested in John and Elizabeth Sheirich by virtue of the will of their brother Abraham, who died April 1, 1884. Forty-one years, one month and four days after his death, on May 18, 1925, the Commonwealth had this interest appraised for collateral inheritance tax purposes and asks that the amount of the tax with accumulated penal interest be awarded it.

The lapse of time and the presumption that a mandatory obligation was not disregarded by both responsible parties and sworn officials creates the presumption that the tax has been paid; and this is strengthened by a correlated VOL. 7-28