ting its said servant to operate said truck upon said road without a license authorizing him so to do, was run into," etc.

The act of driving the motor truck without a license is prohibited by statute, and it is held in negligence cases to constitute negligence per se. But the act itself does not constitute actionable negligence. Between the violation of the statute and the injury complained of there must be shown a causal connection or relation. Nothing of this sort is averred in the count, and it is insufficient. Lindsay v. Cecchi, 3 Boyce, 133, 80 Atl. 523, 35 L. R. A. (N. S.) 699. Whether in an action for negligence the owner, or driver, had a license or not, authorizing him to drive the truck, is in itself a vain thing. The vital question is whether the act described was negligently done.

The demurrer is overruled as to the first and second counts, but sustained as to the third.

(6 Boyce, 451)

POND v. BENZIK.

(Superior Court of Delaware. New Castle. March 21, 1917.)

REPLEVIN 38- DELIVERY BOND - ERRONEOUS NAMING OF DEFENDANT-AMENDMENT OF WRIT.

In replevin, where the sheriff levied on the property, but the defendant was erroneously named and interposed in his proper name and gave bond in his proper name, and the sheriff made return that he had replevied the goods and delivered them on counterbond by the defendant in his proper name, erroneously designated in the writ, and summoned the defendant personally in his proper name, and counsel for the defendant in his proper name entered appearance, the property and the defendant were in court, and plaintiff should be allowed to amend his præcipe and the writ.

Action by Frank H. Pond against Alex Benzik. On plaintiff's motion to strike bond from the files. Præcipe and writ amended.

Argued before BOYCE and CONRAD, JJ. James I. Boyce, of Wilmington, for plaintiff. Caleb E. Burchenal, of Wilmington, for defendant.

On written motion by plaintiff, in substance, that the property bond given by William Benzik to the sheriff may be stricken from the files of the court, and that the sheriff be ordered to return the property replevied by him to the plaintiff, until such time as the defendant in the writ gives a proper bond for the property; or that the præcipe, writ and return thereon may be amended by striking out the name of Alex Benzik and inserting in lieu thereof the name of William Benzik; or that William Benzik may be ordered to interplead in the action, and that the sheriff be ordered to return the property to the plaintiff until such time as the said William Benzik may have filed his interpleadings and given a proper property bond.

The facts appear in the opinion of the court.

BOYCE, J. (delivering the opinion of the court). This is an action of replevin. The sheriff executed the writ in so far as to replevy the property mentioned therein. William Benzik then interposed, and gave to the sheriff the following bond:

"Be it remembered, that William Benzik and Edgar P. Reese, of the city of Wilmington, New Castle county and state of Delaware, personally appeared before Harry J. Stidham. sheriff of New Castle county aforesaid, and acknowledged to owe to said Harry J. Stidham, sheriff as aforesaid, the sum of eight hundred dollars to be levied on their goods, chattels, lands and tenements respectively, for the use of the said Harry J. Stidham, sheriff as aforesaid, upon the condition that if the above bounden William Benzik, his executors or administrators, be and appear before the Judges of the Superior Court at Wilmington on January 1, A. D. 1917, there to answer the said Dr. Frank H. Pond of a plea of taking and unjustly retaining the said goods and chattels, and shall fully and without delay satisfy any judgment which shall be given against him, the said William Benzik, or his executors or administrators, in said suit, then," etc.

There is annexed to the bond a warrant of attorney for the confession of judgment thereon in favor of the said Dr. Frank H. Pond.

William Benzik also caused the sheriff to make the following return on the writ:

"Replevied and delivered the within named goods and chattels and afterwards counterbond given by William Benzik erroneously designated in the writ as Alex Benzik and summoned the said William Benzik personally. So ans.," etc.

Counsel for William Benzik has entered an appearance.

The court is of the opinion that, under the state of the record, both the property and William Benzik, as defendant, are in court; and that the prayer of the plaintiff to amend his præcipe and the writ by striking out the name of "Alex" and substituting the name of "William" therein should be allowed. Let the præcipe and writ be amended accordingly.

(6 Boyce, 452)

STATE v. PRETTYMAN et al. (Court of Oyer and Terminer of Delaware. Sussex. March 8, 1917.)

1. CRIMINAL LAW 572-DEFENSES-ALIBI.

The defense of alibi, to be effective, must convince the jury, not only that the testimony is true, but that it so clearly shows the absence of defendants that it was physically impossible for them to have committed the crime charged.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1268, 1289-1291.] 2. CRIMINAL LAW ~877 — VERDICT

- CODE

FENDANTS. Under indictment of three persons for murder in the first degree, the jury could find one, two, or all of them guilty as the evidence war

ranted.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2096, 2097.]

Under indictment of three persons for murder in the first degree, the jury could find them guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty, as the evidence warranted.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2096, 2097.]

4. HOMICIDE 22(1)—“MURDER IN THE FIRST

DEGREE"-ELEMENTS.

"Murder in the first degree" is committed when a person is killed by another with express malice aforethought.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 35, 36.

For other definitions, see Words and Phrases, First and Second Series, Murder in the First Degree.]

"EXPRESS

5. HOMICIDE 12, 231–MURDER MALICE AFORETHOUGHT.' "Express malice aforethought" exists where one person kills another with a sedate, deliberate, and formed design, which may be manifested by antecedent menaces or threats, or by hatred, jealousy, or revenge, or because of a grudge.. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 17, 479.

For other definitions, see Words and Phrases, First and Second Series, Express Malice.] 6. HOMICIDE 232-MURDER-USE OF DEADLY WEAPON.

The deliberate selection and use of a deadly weapon such as a pistol, knife, or razor is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a deliberate formed design to kill.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 480.]

7. HOMICIDE 22(3)—MURDER IN THE FIRST DEGREE-MALICE TIME OF EXISTENCE.

If the killing is done with a sedate, deliberate, and formed design, the length of time that such design or intention exists in the mind of the slayer is immaterial, for the killing under such circumstances would be murder of the first de

gree.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 38.]

8. HOMICIDE 23(1)-"MURDER IN THE SECOND DEGREE"-"IMPLIED MALICE.",

"Murder in the second degree" is where the crime is committed with "implied malice," that is, a conclusion of law from the facts proved, where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse or other provocation, or sufficient provocation to reduce the offense to manslaughter.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 35, 39.

For other definitions, see Words and Phrases, First and Second Series, Implied Malice; Murder in the Second Degree.]

The degree of credit due to a confession is to be estimated by the jury under the facts of the particular case, and the whole of what the accused said on the subject at the time of making the confession should be taken together.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1229.]

15. CRIMINAL LAW 59(5)—"ACCOMPLICE."

Every person who abets, procures, commands, or counsels any other, or others, to commit any crime or misdemeanor is an "accomplice," and equally criminal as the principal offender.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 81.

For other definitions, see Words and Phrases, First and Second Series, Accomplice.]

16. CRIMINAL LAW 857(1)—TRIAL-SCOPE OF JURY'S INQUIRY-TESTIMONY.

In determining guilt or innocence of persons accused, the jury must be governed by the testimony, and not by questions of counsel which are not answered, or answers of witnesses that are stricken out by the court, since they do not constitute testimony.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2054.] 17. CRIMINAL LAW

857(1)—TRIAL-SCOPE

OF JURY'S INQUIRY. the evidence, and not upon opinions of counsel The jury must base its verdict wholly upon

for either side.

SUMPTIONS.

13-MURDER-MALICE-PRE

If death ensues from an unlawful and cruel

act of violence on the part of the slayer, in the absence of adequate or sufficient provocation,

nell, both of Georgetown, for defendants Prettyman and Hargus. Robert G. Houston, of Georgetown, for defendant Purnell.

PENNEWILL, C. J. (charging the jury). The indictment charges that William Prettyman, Adam Hargus and Webster Purnell, the defendants, on the night of September 23d, last, at the home of Webster Purnell, one of the prisoners, on Lewes beach in this county, did feloniously, wilfully and with express malice aforethought, make an assault upon one Harry Parker, and that one of said defendants inflicted upon the said Parker a mortal wound by cutting his throat, from which wound the said Parker instantly died. And it is also charged that the other defendants were present, aiding, helping, assisting, abetting, procuring, commanding and counseling in the commission of the murder. It is also charged that other wounds were inflicted.

There are several counts in the indictment but they differ mainly in the name of the defendant who inflicted the wounds, and in the description of the different wounds. For the purposes of this case we have sufficiently stated the charge; to repeat the varying language of the several counts would confuse rather than help you in the performance of your duty.

The prisoners all deny that they had any thing to do with the killing of Parker, and claim that they were not present at the time he is alleged to have been murdered, and knew nothing at all about the commission of the crime.

[1] The defense set up is that which is known in the law as an alibi, which means that at the time the alleged offense was committed the defendants were not present, but were elsewhere, and could not therefore have committed the crime. This is a good defense when proved to the satisfaction of the jury. To be effective the jury must be convinced, not only that the testimony is true, but that the alibi or absence of the defendants has been so clearly shown that it was physically impossible for them to have committed the crime charged against them.

[2, 3] Under this indictment you may find all of the prisoners, or two or one of them guilty of murder in the first degree, guilty of murder in the second degree, guilty of manslaughter or not guilty, as the evidence in your judgment shall warrant.

It becomes the duty of the court, therefore, to explain as clearly as we can these three offenses.

[4, 5] Murder of the first degree is committed when a person is killed by another with express malice aforethought. Express malice aforethought exists where one person kills another with a sedate, deliberate and formed design. This formed design may be manifested in many ways, for example, by antecedent menaces or threats that disclose

one from hatred, jealously, or revenge, or because of a grudge, coolly and deliberately forms the design to kill another and commits the act it is done with express malice aforethought and is murder of the first de gree.

[6] The deliberate selection and use of a deadly weapon such as a pistol, knife or razor, is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a deliberate formed design to kill.

[7] If the killing is done with a sedate, deliberate and formed design, the length of time that such design or intention exists in the mind of the slayer is immaterial, for the killing under such circumstances would be murder of the first degree.

[8] Murder of the second degree is where the crime is committed with implied malice; that is, when the malice is not express as in murder of the first degree, but is a conclusion of law from the facts proved. It is where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse and without provocation or sufficient provocation to reduce the offense to manslaughter.

When the killing is done without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and reckless indifference to human life, the law implies malice and makes the offense murder of the second degree.

[9] Malice is an essential ingredient of the crime of murder of both degrees. It is a it there can be no murder either of the first condition of the mind or heart, and without or second degree.

[10, 11] If death ensues from an unlawful

and cruel act of violence on the part of the slayer, in the absence of adequate or sufficient provocation, the law implies that such act was done with malice. Where the killing is shown to have been done with a deadly weapon, it is presumed to have been done maliciously, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused.

[12] There has been admitted in evidence a confession alleged to have been made by one of the defendants, and it is proper that the court should instruct you that such confession can affect only the defendant who made it, and that it is not evidence against other defendants who were not present when the alleged confession was made.

[13, 14] A confession of guilt should not be considered if it was not free and voluntary, but procured through the influence of threats or the promise of favor. But a free and voluntary confession is generally deserving of the highest credit, because it is against the interest of the person making it, and is presumed to flow from a sense of guilt. The

On plaintiff's version of the facts, the question of defendant's negligence was for the jury; for, if true, it showed that a substantial defect had existed in the cartway of this street so long that its existence should have been known to the borough authorities. Shaw v. Philadelphia, 159 Pa. 487, 28 Atl. 354.

[2] Under defendant's evidence, which we might be strongly inclined to credit, there would be nothing to submit to the jury; for it requires something more than a slight depression or unevenness in the surface of a roadway to render the municipality liable. Clifton v. Philadelphia, 217 Pa. 102, 66 Atl. 159, 9 L. R. A. (N. S.) 1266, 118 Am. St. Rep. 906, 10 Ann. Cas. 537. But the credibility of the witnesses was for the jury.

[3] The deceased was apparently a chance passenger, and, while liable for his own negligence, was not liable for that of the driver, except in so far as he concurred therein. The questions as to whether the driver was intoxicated, and, if so, whether that contributed to the accident, and also whether the deceased participated in the carelessness, if any, of the driver, were questions of fact.

The question of the financial loss sustained by his death could not properly have been withdrawn from the jury.

The assignments of error are overruled, and the judgment is affirmed.

(255 Pa. 512)

NOBLE et al. v. WESTERN PENNSYLVANIA NATURAL GAS CO. (Supreme Court of Pennsylvania. Jan. 8, 1917.) MINES AND MINERALS 79(7)-OIL AND GAS LEASE ROYALTIES MEASUREMENT-DIS

COVERY.

Where an oil and gas lease provided for the payment of royalties based on the gas marketed, the amount to be metered but was silent as to the pressure at which the measurement was to be made, and the complainant's contention that there was a custom that measurements be made at a certain pressure was not supported by evidence, and where it appeared that the general practice was to stipulate in the lease the measurement pressure and where it was admitted that during the negotiations for the lease nothing was said as to measurement pressure, a bill in equity for a discovery as to the readings of the lessee's pressure gauge affixed to pipe near the meter, and for an accounting, would be dismissed.

a

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 209.]

Appeal from Court of Common Pleas, Allegheny County.

As there was no exception taken to the general charge, it is not necessary to refer to that portion thereof assigned as error. However, there is nothing in the charge to justify criticism.

[4] Plaintiff's evidence tended to show that the deceased was 52 years of age, in good health, that his occupation was that of a farmer and teamster, that he also in winter weather assisted in the preparation of horseradish for the market, that he had two teams, one of which he drove himself, that the wages of a teamster were from $2 to $2.25 per day, and that he had worked at teaming about 3 months during the preceding winter. There was also evidence as to the amount of his personal expenses for clothing, spending money, etc., and also as to his habits and what he did with his earnings. In our opinion sufficient was shown to enable the jury to form an intelligent estimate of the financial loss which his family sustained by his death. The evidence at least afforded some basis on which his earning capacity could fairly be fixed. McHugh v. Schlosser, 159 Pa. 480, 486, 28 Atl. 291, 23 L. R. A. 574, 39 Am. St. Rep. 699; McKenna v. Citizens'

Shafer, P. J., in the court of common pleas, filed the following findings of fact and conclusions of law:

Findings of Fact.

First. The plaintiffs, in February, 1914, made to the defendant an oil and gas lease, whereby they let to the defendant a farm containing 98 acres, in Hempfield township, Westmoreland county, for one year or as long as oil and gas should be found in paying quantities; and in consideration of the premises the defendant lessee agreed to deliver to the plaintiff John H. Noble, one of the lessors, one-sixth of the oil, if oil were found and if gas were found in sufficient quantities for marketing "said gas shall be measured by meter at the well," and, further, that if more than one well were drilled, all the gas should be connected into one system of pipes and a meter or measuring station installed on the premises, and the lessors should receive as royalty for the gas sold off the premises 212 cents per thousand cubic feet. The lessee agrees to commence operations within three months from the date of the lease and complete a well within six months, and to drill other wells under which are not material to this case. certain conditions as to production of the first,

Second. The defendant thereupon entered upon the land and drilled a well which produced gas, and afterwards drilled two others and connected a meter was installed. the three together by pipes at one point where

Third. The defendant furnished to the plain