justice on December 18, 1902, and by transcript duly filed February 3, 1903, obtained a lien against defendant's real estate. The judgment so entered was not revived within five years.

Plaintiff now seeks to revive it, and the defendant introduces the defense that she was discharged in bankruptcy of all debts that were provable September 13, 1904.

It is admitted that no personal judgment can be obtained against the defendant, and the effort is made to take her real estate for the satisfaction of the debt, the real estate being subject to the lien of the transcript under its entry of February 3, 1903.

It was decided in Arnold's Appeal, 34 Pa., 151, that the lien of a judgment though not revived within five years continues against the land of the debtor, and that the restraint of the lien of a judgment to a period of five years operates only in favor of purchasers from the debtor and judgment creditors, but is without limit against every one else; Ziegler vs. Schall, 209 Pa., 528, and cases cited.

A discharge under the national bankruptcy law does not cancel the debt; it destroys the remedy. It is personal to the debtor, and a valid lien is not affected thereby; Pepper & Lewis' Digest of Decisions, Vol. 2, Sec. 2025 and 2029.

Conceding that the plaintiff's lien did not expire he has the right to proceed against the property bound by the lien. His remedy must, however, be confined to the property bound. If we allow a general judgment of revival to be entered the other property of the defendant, if any she has, will be bound, and her personal property will be liable to be taken

in execution. It is true that such execution might be stayed upon application, but we prefer that the matter be determined without further proceedings. We therefore make the order accordingly.

Quarter Sessions.

Commonwealth v. Myers.

Limitations-Evidence.

Where no motion is made to quash an indictment found more than two years after the perpetration of the offense and the question fendant was a fugitive from justice, and the is submit ed to a jury whether or not the dejury finds against him, he cannot afterwards move in arrest of judgment.

Where a party has the burden of proving liarly within the knowledge of the opposite a negative, and the subject-matter lies pecuparty, full proof is not required, it is considered sufficient if he offers such evidence as, in ford ground for presuming that the allegathe absence of counter testimony, would aftion is true.

Where, therefore, the prosecutor, on indictment more than two years after the offense, where the defendant was last seen in the had made search and inquiry at the place county but without success and the defendant who had claime! several places of residence produced no evidence at the trial to show residence in the sta e, the finding of the jury against such residence is conclusive and their verdict of conviction stands.

Motion in arrest of judgment. Q. S. Lancaster Co. September Sessions, 1913, No. 126. Indictment, No. 17, for False Pretense.

M. G. Schaeffer, for motion.

E. M. Gilbert and John M. Groff, District Attorney, contra.

September 20, 1913. Opinion by LANDIS, P. J.

The complaint in this case, which was fendant with having, on June 7, 1911, made on May 29, 1913, charged the deby false and fraudulent representations,

check for $75.00, in payment of a stolen obtained from one, H. B. Witman, a horse, and also set forth that the defend

ant had not been an inhabitant or usual resident in the state for the preceding two years. The indictment was found on September 8, 1913, and it was alleged therein that the defendant was a fugitive from justice from June 7, 1911, to May 29, 1913.

The facts as elucidated upon the trial

were briefly these: on June 7, 1911, the defendant, who gave the name of George Riker, came to Mr. Witman's hotel, at Unicorn, in this county, and offered to sell him a horse. He stated that a man whose name he could not give owed him a phosphate bill of something like three hundred dollars, and that he had taken the horse in payment of his note, thinking it was better to do this than to get nothing. Witman thereupon bought the horse for $75.00, and gave his check for that amount, and the next morning the defendant went to the Farmers' National Bank of Quarryville and had it cashed. Some time subsequent to this, a Mr. Cummings, who kept a livery at Rising Sun, in the State of Maryland, claimed the horse as having been stolen from him and took it away. Witman stated that, when he ascertained that the horse was stolen, he came to Lancaster and inquired for the defendant, and had been on the lookout ever since, but that he could find no trace of Riker until the latter part of May last. It seems that, at that time, the defendant came to the house of James Witman, a brother of the prosecutor, and stated that his name was Charles Myers. He wanted to sell James a wagon and a horse, and James desiring to consult his brother about the purchase, they together went to prosecutor's place. The defendant was there recognized and his arrest followed. He seems to have been a stranger in the vicinity of Unicorn, and, when he first came to the county, he said he lived in Allentown, and he was so registered at Kirk's Hotel, in the Borough of Quarryville. He was last seen in this vicinity by the prosecutor in Lancaster on the day the check was cashed. Upon the hearing of this case, the defendant stated, first, that he lived on the other side of Columbia, and, afterwards, that he came from Virginia, and he produced a letter-head which was not fully explained. Under this state of facts, the Court submitted to the jury the questions: First, whether the defendant had committed the offense charged in the indictment; and second, whether, if he did, he was a resident of the state within two years after its commission. The jury found him guilty in manner and

form as he was indicted, and his counsel now contends that there was no sufficient proof that he did not live within the state during the two years preceding the finding of the bill, and that the offense was, therefore, barred by the Statute of Limitations.

The Act of March 31, 1860, P. L. 450, sec. 77, provides that all indictments for any crime or misdemeanor shall be brought within the time therein set forth and not after, and by its terms it is stipulated that all indictments for misdemeanors, except perjury, shall be brought or exhibited within two years next after the misdemeanor shall have been committed, "provided, however, that if the person against whom such indictment shall be brought or exhibited shall not have been an inhabitant of this state, or usual resident therein, during the said respective terms for which he shall be subject and liable to prosecution as aforesaid, then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an inhabitant of, or usually resident within, this state." In construing this Act, it was held, in Blackman vs. Commonwealth, 124 Pa., 578, that, where, on the trial of an indictment, the defendant may, under this statute, interpose the limitation, "it is the better practice, yet not essential, to aver in the indictment the facts relied upon to bring the case within the terms of the proviso to said section," but that the Commonwealth, without such an averment in the bill, may prove "that the defendant was not an inhabitant of the state, or usual resident therein, within the said period." It was also held, by the Superior Court, in Commonwealth vs. Werner, 5 Sup., 249, that "an indictment is fatally defective which shows, on its face, that it was found more than two years after the commission of the offense, and fails to allege that defendant had not been an inhabitant or usual resident of this state at any time before he was indicted." These cases, therefore, do not seem to be entirely harmonious; but that is of no importance in the present controversy, because here the situation is not affected thereby, as the indictment the indictment expressly

charged that the defendant was a fugitive from justice.

In Commonwealth vs. Bates and Shaw, I Sup., 223, it was said that, "where a party has the burden of proving a negative and the subject-matter lies peculiarly within the knowledge of the opposite party, full proof is not required; it is considered sufficient if he offers such evidence as, in the absence of counter testimony, would afford ground for presuming that the allegation is true. Therefore, "when an indictment is found more than two years after the perpetration of the offense, it is incumbent on the Commonwealth to show that the case is within the exception, ** but the most that can be required of the Commonwealth is, to furnish evidence of facts from which, in the absence of evidence on the part of the defendant as to his residence, a jury may fairly infer that he was not an inhabitant or usual resident of the state during the period in question." In Commonwealth vs. Smith, 19 C. C. R., 397, it was held that, "where an offense was committed on June 15, 1894, and the indictment was not found until September 29, 1896, the defendant in the meantime having gone to Philadelphia and there engaged in business, it is for the jury to say whether he went away to avoid arrest or not." See, also, Commonwealth vs. Blackburn, 3 C. C. R., 464. Again, it was held, by this Court, in Commonwealth vs. Wilson, 25 LANC. LAW REVIEW, 278, that, where no motion is made to quash such an indictment, and the question is submitted. to a jury whether or not the defendant was a fugitive from justice, and the jury finds against him, he cannot afterwards move in arrest of judgment.

Therefore, under these authorities, we are of opinion that there is no merit in the defendant's contention. The question whether the defendant was an inhabitant or usual resident was fairly submitted to the jury, and they have found that he was not and convicted him of the offense charged. In fact, the instructions to the jury may, if anything, have been more favorable to the defendant than he was entitled to demand. The defendant was a stranger in the vicinity where the crime was committed.

Commonwealth v. Mahoney.

Indictment - Motion to Quash - False Pretense-Allegations-Proofs.

An indictment charging false pretense in giving a check, payment of which was refused by the bank on which it was drawn, will be quashed when it fails to allege when and how the check came to the bank, why payment was refused and that the check was presented with reasonable promptness.

The burden of proof in that regard being on the commonwealth, whatever must be proved must be alleged.

The validity of an indictment must be tested by the same considerations which apply to the proofs.

The mere allegation that payment was refused, will not support an inference that payment was refused on account of "no funds."

Motion to quash indictment. Q. S. Lackawanna Co.

D. J. Reedy, for Commonwealth.

R. H. Holgate and R. J. Manning, for defendant.

August 11, 1913. Opinion by NEWCOMB, J.

The offense charged, or intended so to be, is that of cheating by false pretenses. The false token is this: "That a certain check then and there presented to the said Fank L. Smith by the said William Mahoney and signed as maker by the said William Mahoney, the said check being drawn on the South" (Side?) "Back of Scranton, Pennsylvania, for the sum of thirty-two dollars, was a good and valid check and that the said check would be honored and paid by the

said bank on presentation of said check at said bank."

This is laid under date of November 6, 1912, though no copy of the check is set out.

The representation is falsified only in these terms: Whereas in truth and in fact the said check was not a good and valid check and payment on the same was refused by the said bank when said check was presented at said bank," etc., coupled with an averment of scienter in the very general form usual in such pleading.

If by the words "good and valid check "it was meant to say that the defendant claimed he had an account in the bank subject to his check and sufficient to meet it, then the fact was very awkwardly expressed to say the least. The pleading is open to the criticism of being uncertain and ambiguous. It is not aided by the additional averment of a promise that the check would be paid on presentation. But that seems to be what was intended, namely, that defendant claimed to have an account in bank out of which the check was payable. At least the present motion has been contested by the Commonwealth on that theory.

For present purposes it may be so assumed, and the objection to that extent

overruled,

The next question is: How does it appear that this was untrue, i. e., that he did not then have such account.

The Commonwealth says "see what happened when the check came to the bank; payment was refused."

True, it is so averred; but why it was refused is a matter about which the pleading is silent. So, in the attempt to connect the refusal with the lack of funds to defendant's credit, one must grope around in the field of conjecture. It may have been refused for a very different reason; one, indeed, which is not without significance in the considera

tion of this motion.

It will be noted that there is nothing on the face of the indictment to indicate when or how the check came to the bank. For this occasion it could be assumed to have been sometime between November

6th and January 9th; one being the date of the check, the other that of the indictment.

But that leaves a wide margin of uncertainty which is believed to be fatal.

In the first place, for anything that apnot have been for want of funds; but pears to the contrary, the refusal may because of the age of the check when presented.

But what is more important-no inference against the existence of an ac

count in bank at the date of the check

can be drawn from the fact that defendant had no account there at a latter date, unless it be a resonably close date. In other words, where the inference of conscious guilt must arise, if at all, from the mere fact of non-payment by the bank, it would upon the trial have to appear that the check has been presented with reasonable promptness. That burden would be on the Commonwealth. If.

for example, it appeared only that after the lapse of thirty days, payment of such check was refused, it is quite inconceivable that the case could go to a jury.

The validity of the indictment must be tested by the same considerations that apply to the proofs. Whatever must be proved must be alleged; and the trouble here is that everything alleged might be proven without making out a case. either at the date of the check or at any it were alleged that defendant at no time,

If

other time between that and the date of with the bank, then it would be quite imthe indictment, had any account or credit material at what time the payment was

pay

refused. That is so because the mere fact of refusal is not essential to the offense. The false pretense, if any, is not in declaring that the bank will the check; but in the negotiation of a check which defendant knows he had no right to draw. In the absence of other averment of that fact here, the pleader seeks to show it by the bank's refusal to accept. The only function which that serves is essentially that of an item of evidence to support an inference of “no funds." As such it is quite apparent that the time of refusal is material. At best all that is shown here is the assertion of money in bank to meet the check

when drawn, and the fact that there was none at some undisclosed date thereafter when it was presented.

That is not enough. The rule to show cause is made absolute and the indictment is quashed without prejudice to the right of the district attorney to submit a new bill to the next grand jury upon timely notice to defendant without a new commitment.

that the majority of international lawyers favor freedom of the air. The analogy to the freedom of the ocean is not at all an apt one. There is nothing in common between the two. The air above the ocean should be as free as the waters in the ocean, but the air above the land should not be any more subject to international use than the navigable waters. belonging to the sovereignty which controls the land."

Tegal Miscellany.

Aerial Navigation and International Law. A. H. R., in the Central Law Journal,

writes:

"Keen discussion of the question as to the sovereignty of the air has been provoked by the declaration of Sir Henry Erie Richards, Oxford professor of international law and diplomacy, that the states must have absolute control of the air above their territories.

"It is true,' said the professor, that a majority of international lawyers favor freedom of the air, just as the ocean three miles from the shore lines of the states is free. Of course, everybody concedes that the space close to the ground comes within the jurisdiction of the state concerned. An analogy between the air and the ocean seems to me utterly misleading and fallacious. Ships three miles from shore cannot drop destruction on the country, while aerial vessels, no matter how high they are, can do so; indeed, the higher the vessels are the greater their destructive power. Any use of the air affects the state beneath, hence the inherent right of the state to control the air above it.'

"The Times, welcoming the raising of the question by the professor and agreeing with him that the air cannot be free, says it is high time, in view of the increasing use of the air in peace and war, that the nations of the world should try to arrive at a unanimous decision on the problem.

"It is certainly surprising, if it be true,

Bankruptcy.

The death of one holding a policy of insurance upon his life, payable to his personal representatives or estate, after the filing of a petition in bankruptcy against him, and before adjudication, is held in re Andrews (C. C. A. 3rd C.), 41 L. R. A. (N. S.) 123, to destroy the surrender value of the policy, and, it having been capable of assignment by him, and passing to the bankruptcy trustee under section 70a-5 of the bankruptcy act, there is held to be nothing upon which the proviso to that section allowing redemption by payment to the

trustee of the surrender value of the

policy can act, and therefore the whole proceeds of the policy become assets in the hands of the trustee.

In order to allege a voidable preference under bankr. act July 1, 1898, chap. 541, section 60a, 60b, 30 Stat. 562; and amendment thereto, approved February 5, 1903, where the act complained of is the procuring or suffering a judgment to be entered against the bankrupt in favor of any person, it is held in Rodolf vs. First Nat. Bank (Okla.), 41 L. R. A. N. S.) 204, to be necessary to allege that at the time of the rendition of the judgment to be entered against him he intended thereby to give a preference, and that the judgment creditor had reasonable cause to believe that the judgment debtor so intended, and that the judgment creditors benefiting thereby would receive a greater percentage of their debt than other creditors of the same class.