Self-incrimination of Automobile Drivers by Identity in Case of Accident. As the opinion of the learned court of Mis- Could Be Trusted. v. The late Lord Young, of the Scottish bench, was responsible for enlivening many a dull case. One of the best remarks that ever fell from his lips was the reply to a counsel who urged on behalf of a plaintiff of somewhat bibulous appearance: The New York Highway Law contains the following provision: "Any person operating a motor vehicle, who, knowing that injury has been caused to a person or property due to the culpability of said operator or to accident, leaves the place of said injury or accident without stopping and giving his name, residence," etc., "shall be guilty of a felony." One Rosenheimer, being indicted for violation of this statute, demurred on the ground that it was unconstitutional, was in violation of the provision that no person shall be compelled in any criminal case to be a witness against himself. The demurrer was sustained, and on appeal the decision affirmed by the Appellate Division of the New York Supreme Court, in People v. Rosenheimer, 130 New York Supplement Reporter, 544. The people then appealed to the Court of Appeals, where the decision of the lower court was reversed (102 Northeastern Reporter, 530). The Court says: "The statute does not require the operator of the motor vehicle to state the circumstances of the occurrence tending to show his responsibility, but merely to stop and identify himself. Undoubtedly it does require him to make known a fact which will be a link in the chain of evidence to conAfter a long look the judge answered: vict him of crime, if in fact he has been 'Yes, he looks like a man who could guilty of one. Whether the compulsory be trusted with any amount of water." furnishing of such a link is a constitu--M. A. P. tional violation, may be questioned. The learned judge who wrote for the minority of the Appellate Division has presented in his opinion a very strong argument in support of the proposition that the statute is a valid exercise of the police power apart from considerations of the peculiar character of a motor car. Since the decision of this case in the Appellate Division the question has been presented to the Supreme Court of Missouri, which, in a very forceful opinion, adopted the view entertained by the judges who dissented in this case in preference to that of the majority. Er parte Kneedler, 243 Mo., 632; 147 S. W., 983; 40 L. R. A. (N. S.), 622. In 66 My client, my lord, is a most remarkable man, and holds a very responsible position; he is manager of some waterworks." 66 The Moberly Monitor is telling this little story on a lawyer there. It happened in Judge Tedford's court, and the witness was a negro woman, whose reply to every question was "I think so. Finally the opposing lawyer rose and pounded on the desk. "Now, you look here," he roared, "you cut that thinking business and answer my questions. Now talk." "Mr. Lawyer Man," said the witness, "Mr. Lawyer Man, you will have to 'scuse me. I ain't like you 'terneys. I can't talk without thinkin'." -Case and Comment. and Quarryville, that a suburban car, LANCASTER LAW REVIEW. such as was then in use on that electric road, could be stopped, if the motorman VOL. XXXI.] FRIDAY, AUG. 28, 1914. [No. 43 had it under control, going at the rate Supreme Court. Orr v. Conestoga Traction Co. Trolicy cars-Damages for frightening horse-Speed-Whistling. In an action against a street railway company for damages for injury sustained in consequence of the fright of a horse which the plaintiff was driving, a non-suit was properly entered where it appeared that the defendant's car came up behind the plaintiff at a speed of twenty miles an hour and gave two shrill whistles, on account of a crossing ahead, just before it passed him, and failed to slow up, although signaled to do so. Appeal No. 167 of January Term, 1914, from action of C. P. of Lancaster Co. refusing to strike off non-suit in suit of Mary G. Orr and Harry W. Orr, her husband, against the Conestoga Traction Co., to June Term, 1912, No. 6. The suit was brought to recover damages for injury caused by plaintiffs' horse taking fright at a trolley-car of the defendant company and bolting over a side | fence on a public road as the car passed from behind, going at twenty miles an hour, and whistled for a crossing without heeding a signal to slow up. The Court below, LANDIS, P. J., entered a compulsory non-suit and refused to strike off the same. (See supra, p. 81.) The plaintiff then appealed, assigning error as follows: 1. The Court below erred in refusing to strike off the judgment of non-suit. 2. The Court below erred in refusing to allow Robert Wasson, a witness for the plaintiff, to testify to the following: "Mr. Montgomery: I offer to prove, by Robert Wasson, the witness on the stand, who was a motorman in the employ of the defendant company at the time of this accident and was operating on that line of road between Lancaster of twenty miles an hour, within fifty to sixty yards. Mr. Hensel: That is objected to as irrelevant. The Court: Disallowed as immaterial. (Plaintiff excepts. Exception noted for the plaintiff.)" C. E. Montgomery, for appellants. The horse was plunging and rearing, and the wife had signaled the car to stop before it reached the plaintiff; notwithstanding which it dashed past, whistling, at twenty miles an hour. This was negligence under the circumstances. Kestner. P. & B. Traction Co., 158. The car should have stopped. Kelly . P. & B. Traction Co., 10 Waechter 7. Second Ave. Traction Co., 198 Pa., 129. Lapsley . Pittsburgh Rys. Co., 243 Pa., 167. Byrne . M. & C. Elec. Ry. Co., 19 Super.. 531. Wright. Monongahela St. Ry. Co., 213 Pa., 318. The whistling was additional negligence. A witness would have testified, had his testimony not been excluded, that going at 20 miles an hour the motorman could have dead-stopped his car within a distance of 150 to 180 feet, which would have been from 45 to 75 feet distant from plaintiffs. This should have been admitted, and would have shown negligence. Byrne . M. & C. Elec. Ry. Co., 19 Super., 531. The case of Hollihan . Pittsburgh Rys. Co.. 54. Super. 204. relied on by the court below, was plainly distinguishable from this case, because there the horse showed no sign of fright until the car was opposite to him. July 1, 1914. PER CURIAM: This judgment is affirmed on the opinion of the learned president judge of the court below, discharging the rule to show cause why the non-suit should not be stricken off. Common Pleas--Law R. E. Zell v. J. L. Lefever. Certiorari Adjourned hearing-Agreement between attorneys-Rule VI, Sec. 8. Rules of Court, C. P.-Laches. Where a hearing before an alderman has been continued by agreement of attorneys for the parties, the date not being fixed, and the testimony of the attorneys, in certiorari pro ceedings, differs as to the subsequent arrangements, the Rule of Court requiring agreements between attorneys to be in writing will be enforced and the alderman's record showing a continuance to a day certain "by consent of parties" will be sustained. Where the attorney for defendant is informed that an adjourned hearing had been held the day before, he is bound to know that a judgment had followed it, and a certiorari, two years thereafter, based on the complaint that defendant had no notice of the time of the hearing, is too late. February Term, 1914, No. 21. C. P. of Lancaster County. Certiorari. Harvey B. Lutz, for defendant and certiorari. John E. Snyder and F. Lyman Windolph, contra. July 11, 1914. Opinion by LANDIS, P. J. The record in this case shows that the suit was begun before Alderman Spurrier on January 2, 1912, and that the defendant was summoned to appear on January 9, 1912, between 9 and 91⁄2 o'clock a. m. The summons was regularly served upon the defendant. No hearing, however, was had on the day thus fixed, but the case was continued until January 16, 1912, at 9% to 10 o'clock a. m., "by consent of parties." On the last-named date the plaintiff appeared, but the defendant did not; a hearing was duly had, and the alderman, upon a full examination of the proofs and allegations," entered judgment in favor of the plaintiff for $95.15, with costs of suit. On March 10, 1913, an execution was issued and returned "No goods," and on March 15, 1913, a transcript was secured, which was entered in this Court on September 18, 1913. Only on January 22, 1914, was this certiorari issued. The reasons alleged by the defendant why the proceedings should be set aside are, first, that the defendant had no notice of the time to which the hearing was continued, and, second, that the record does not show that the defendant had notice of the time of hearing or the entry of the judgment. From the depositions taken in the case, it appears that, after the summons was served upon the defendant, he employel H. B. Lutz, Esq., as his attorney. Mr. Lutz says he saw John E. Snyder, Esq., attorney for the plaintiff, concerning an adjustment of the claim, and Mr. Snyder agreed to continue the case, and a time for a hearing could be fixed. No settlement was ever effected, and no was agreed upon between them. Mr. Lutz testifies that no notice was given him, until after the hearing was over; but he admits that he received a communication that there would be a hearing at a certain time, the notice, however, reaching him the afternoon after the hearing had been held, or the morning following. He says he then saw Mr. Snyder, who told him that, if the matter could not be adjusted, the defendant could put in his defense at any time. He never inquired of Alderman Spurrier whether a judgment had been entered, though he admits the matter may have been spoken of between Mr. Snyder and himself. Mr. Snyder's story is, that Mr. Lutz made a request for a continuance, and he (Snyder) then had the case adjourned until January 16, 1912. On that day the case was heard, the plaintiff being pres ent. Neither Mr. Lutz nor his client appeared. A telephone message was sent to Mr. Lutz's office, but no response was obtained. Mr. Snyder says Mr. Lutz after that date saw him, and was told that judgment had been entered for the plaintiff, and he said it did not make much difference, as he was going to appeal. Mr. Lutz asked that the time for taking the appeal should be extended, as he was going out of town, and it was agreed that it should be, if the appeal was taken promptly. There was afterwards some talk about a settlement, but it does not seem to me that such negotiations can affect the present question. In view of all the facts of this case, I do not think the defendant has shown sufficient reasons for setting aside this judgment. It is admitted that the summons was properly served, and that the attorney employed by the defendant secured an adjournment of the hearing. But surely that adjournment was not intended to continue indefinitely. The testimony of the respective counsel differs as to what arrangement was made between them, and, in such case, the law, I think, should be allowed to take The Rule of this its regular course. Court (see Rule VI of the Common Pleas, Sec. 8) is, that "all agreements of attorneys touching the business of the Court shall be in writing; otherwise, they shall be considered of no validity." The necessity for such a Rule is apparent in the present controversy, and it should be enforced when a case like this arises. It must be remembered that the alderman had a right to continue the case. In Wenger & Bro. v. Hartman, 22 LANC. LAW REVIEW, 61, this Court, by Hassler. I., said: "The adjournment of the hearing, as shown by the record, and entering judgment at the time the record shows the justice did enter it, were all acts within the authority conferred upon him by law." As the defendant was regularly served with the summons, if he had obeyed it and attended, he would have known to what time the case was continued. "It was not necessary to serve him with notice of the adjournment. That a justice can adjourn a hearing, see Ackerman v. Stoner, 7 A. L. Eshbach v. E. M. Book. LANC. LAW REVIEW, 73; Van Horn, v. Sale-Warranty-Offer to return-ReIndependent Order, 1 Kulp, 375;, Loftus v. Ball Club, 1 Lack. Jur., 37.' 66 But, outside of this, I do not think the defendant has any standing. In Bertz v. Troast, 17 LANC. LAW REVIEW, 169, it was said: While, however, we have concluded that the service was properly made on the defendant by the constable, we think the delay in issuing the certiorari is also fatal. Troast was present at the alderman's office on the evening of June 28, 1898, and was informed at that time that a hearing had been had on the morning of that day. It makes little difference whether or not the alderman stated to him that a judgment had been catered. As a matter of law, a judgment always follows a hearing, and he was bound to know it. If he made no further inquiry, he was neglectful of his own duty, and has fallen far short of what the law requires of him in order to avail himself of a writ of certiorari at this late day. Therefore, even if the proceedings were irregular, by his own. laches he has deprived himself of a remedy." The same language can with equal force be used in this case. The defendant's counsel knew that a hearing had been had. He was bound to know that a judgment had followed it. He could not escape the effect of that judgment by negotiations for a settlement. It was his duty to have the proceedings set aside, if they were irregular, and to act promptly. Two years, however, elapsed before he caused the writ of certiorari to be sued out. In the face of this delay, surely it would be stretching the law to hold that he acted in good time. tention-Difference in market valueLegal tender-Check. Where a cow is purchased with a warranty as to soundness, it is the duty of the purchaser to return or offer to return it as soon the cow is retained, the purchaser is obliged as the breach of warranty is discovered. If to show in a suit for the purchase money the difference, if any, in the market value at the time of purchase in good condition and the time of the breach. Where in an action for the purchase price of a cow the defense is that the cow was not purchased, it is immaterial whether the cow was unsound. absence of proof that it was received as payA check is not a legal tender, and in the ment, the drawer is not relieved from liability. April Term, 1912, No. 58. C. P. of Lancaster County. Rule for new trial. B. F. Davis, for defendant and rule. John M. Groff, for plaintiff, contra. July 11, 1914. Opinion by LANDIS, P. J. This suit arose out of a sale of two cows alleged to have been made by the plaintiff to the defendant. The verdict was in favor of the plaintiff, and, therefore, his story of the transaction must now be taken as the true one. Let us briefly see what the evidence presented by him discloses. He testified that, in December, 1911, he had, on a certain farm belonging to him, located in Martic Township, this county, a lot of cows. One day, on a public road, he met the defendant, and, after some conversation between them, he says the defendant asked him if he Therefore, in view of all the surrounding circumstances, I think the ex-"had a pair of cows that might make ceptions must be overruled and the proceedings of the alderman must be confirmed. Exceptions dismissed and proceedings of alderman affirmed. him some money." The plaintiff says he told Book he had "springers (meaning cows coming fresh the next spring), and he thought he could suit him. No arrangement was made between the parties at this time, and they both testified that they separated without any agreement. It appears, however, that subsequently the defendant went down to the plaintiff's farm, and, having looked over the |