they had proceeded a short distance be LANCASTER LAW REVIEW. yond what is called Kendig's Road, a car, which was going to Quarryville, came behind them, gave two shrieking VOL. XXXI.] FRIDAY, JAN. 16, 1914. [No. 11 whistles, as they say, and immediately Common Pleas--Law Orr v. Conestoga Traction Co. Trolley cars-Damages for frightening horse-Speed-Whistling. In an action for damages against a street railway company for causing a horse to bolt over a side fence, a non-suit is properly entered where it appeared that the plaintiff was driving a young and nervous horse on a country turnpike when a trolley-car of the defendant company came up behind him, running at 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 signalled to do so. C. P. of Lancaster County. June Term, 1912, No. 6. Rule to strike off judgment non-suit. C. E. Montgomery, for rule. W. U. Hensel and W. C. Rehm, contra. December 27, 1913. Opinion by LANDIS, P. J. The present suit was brought to recover damages from the defendant company for alleged negligence, consisting of loud whistling and the running of a car at an excessive rate of speed on the public road upon which the plaintiffs were driving. It appeared that the plaintiffs resided in the City of Lancaster, and that, on March 10, 1912, about 10:05 o'clock in the morning, they left their home, driving a young horse with a buggy attached, for the purpose of visiting Mrs. Orr's father, who resided in the country. They drove out the Willow Street Turnpike, in the middle of the road. Along the left-hand side of the same, at the place of the accident, ran the tracks of the Conestoga Traction Company. When ran by them. At the instant the horse got sight of the car, it dashed over the fence. Henry W. Orr, who was the only one that testified upon the subject, said that, from the time of the whistle to the fright of the horse was a couple seconds. Mrs. Orr, describing what happened, said that, as the car approached the crossing, it gave two shrill whistles, and immediately the horse became frightened, and plunged and reared, and became unmanageable, and I threw up my hand as a signal for the car to stop, and it came onward with a great noise and ran past it, and as soon as the car passed it, and the horse saw the car, at that instant she bolted over the fence and landed on the top of a cherry tree." The speed of the car, as fixed by Henry W. Orr, was twenty miles an hour. Orr was driving a young horse, and that very day. after this accident, it shied at leaves and a log in a public road, about two miles distant, and slipped and fell into a field, from which, with aid from others, it was rescued. Under this state of facts, we were of the opinion that a judgment of non-suit should be entered, and the correctness of that conclusion is now to be determined. Was the motorman guilty of negligence in whistling at the Kendig "Road? Up to that time, there is no evidence that the horse gave any sign of fright, and it was certainly the motorman's duty to signal, as the car approached roads. In Philadelphia Traction Company v. Bernheimer, 125 Pa., 615, Paxson, C. J., in delivering the opinion of the court, said: "It was not negligence to ring the bell as the car approached Fourth Street; it would have been negligence not to have done so "; and in Steiner v. Philadelphia Traction Company, 134 Pa., 199, it was added: The bell of a traction car is not only rung at all street crossings, but frequently at other places, to warn persons of its approach. Nor does such ringing necessarily tend to frighten horses. If it did, there would 66 cases. be accidents daily. We have said emphatically that it would be negligence | not to ring at a crossing, and the plaintiff would probably have been swift to invoke the benefit of such rule had his injury resulted from an omission to do so. If we now say, or permit a jury to say that it is negligence to ring at a crossing, what rule would the company or its gripman have to guide them in such Guided by these authorities, we are forced to conclude that the evidence does not disclose any negligence on the part of the company because the motorman whistled at the road crossing. The next question is, whether there was excessive speed which caused the accident and made the defendant liable. While the plaintiffs testified that the car ran very fast, the only person that fixed the rate of speed was Mr. Orr, who said that it was running at the rate of twenty miles an hour. We do not think that such a rate on a country road is excessive. Under the act fixing the speed of automobiles, which run, not upon a track, but in the public roadway, where they are liable at all times to meet horses and wagons, and pedestrians, the law has fixed twenty-four miles an hour in the country as the maximum rate of speed. "Electric cars upon suburban roads usually move at a good rate of speed. They run fast, and the fact that they do so is one of the reasons why they exist and are permitted to use the public highways. If they did not move speedily, they would not meet the requirements of the public service, and no inference of negligence is to be drawn from the mere fact that they do so: Yingst v. Lebanon Street Railway Co., 167 Pa., 438; Smith 2. Railway Company, 187 Pa., 451;. Dunkle v. City Passenger Railway Company, 209 Pa., 125; Condry v. WilkesBarre and Wyoming Valley Traction Company, 228 Pa., 270." Hollihan v. Pittsburgh Railways Company, 54 Sup., 204. Orr's evidence is, that the car was on the Kendig crossing, and his wife threw out her arm, signalling for the motorman to stop, and immediately the car ran by, and the instant the horse got sight of the car, "she dashed to the right and over the fence." In Hollihan v. Pittsburgh Railways Company, supra, it appeared that the plaintiff was riding on horseback in the middle of a macadamized road, on a down-grade, after having passed a curve; that a street car, following the plaintiff, rounded the curve and came down the grade at a high rate of speed with its bell ringing at the curve and down the grade; and that the horse showed no sign of fright until the car was nearly opposite to him, when he suddenly wheeled and jumped backward, and his rump came in collision with the corner of the body of the car, just back of the steps leading down from the front of the platform. It was held that judgment should have been entered in favor of the defendant, non obstante veredicto. This case fully discusses all the law upon the subject, and, in our judgment, settles the present controversy. We are of the opinion that no sufficient evidence of negligence was presented upon the trial, and that the judgment of non-suit was, therefore, properly entered. We accordingly discharge this rule. ། Jacob Hill Byrne, for rule. B. F. Davis, contra. written contract. That fact is left to inference. The law is, that it is presumed the defendant will swear as hard as he can December 27, 1913. Opinion by LAN- in making out a defense, and that the DIS, P. J. The plaintiff, in his statement, alleges that there is due to him $6.50, with interest from May 8, 1913, for work and labor of walling up a cellar-way with masonry on the premises of the said defendant at No. 470 Rockland Street, Lancaster City. He avers that the work was done on May 1st and 2d, 1913, and that there was a total of thirteen hours' work, at fifty cents an hour. The defendant, in his affidavit of defense, asserts that he is not indebted to the plaintiff for the sum claimed; that the plaintiff agreed to do certain work for him (the defendant), under a written agreement, which was dated April 2, 1913; that that agreement read: "I, O. D. Simmons, hereby agree to repair stone and brick at 470 Rockland Street for Samuel Edelson for the sum of $45.00 complete for one story"; that the plaintiff entered upon the work under the contract, and was paid in full, namely, on April 12, 1913, $20.00; on April 17, 1913, $10,00; and on April 18, 1913, $17.00, making a total of $47.00. Why he should pay the sum of $47.00, when the contract price was $45.00, is not explained; but it is alleged that the plaintiff was paid in full before the work was completed, and that a receipt was given upon the date of the last payment, which reads as follows: "Received from S. Edelson $17.00 as per full amount for contracting job. Pd in full to date." The affidavit of defense says nothing about any work on May 1 and 2, 1913, and does not deny that the plaintiff did work on those days. If this work was done, it was seemingly not included within the contract. According to the written agreement, the work done and paid for was performed between April 2, 1913, and April 18, 1913, and it is not stated in the affidavit of defense that all the work that was done by the plaintiff for the defendant was within the facts not denied by him are to be considered as true. As, then, the defendant has not specifically denied the plaintiff's claim in his affidavit of defense, he has, we think, presented no sufficient defense. Because of this, judgment should be entered in favor of the plaintiff and against the defendant for the sum of $6.75. Rule made absolute. Hilton v. The. Liebig Mfg. Co. A non-resident execution creditor who is defendant in a sheriff's interpleader issue, cannot be required to give security for costs. C. P. of Lancaster County. October Term, 1913, No. 45. Rule on defendant to give bail for costs. B. F. Davis, for rule. J. W. Johnson, John E. Malone, and Coyle & Keller, contra. December 27, 1913. Opinion by LANDIS, P. J. The Liebig Manufacturing Company, of Cartaret, New Jersey, obtained a judgment against Eber E. Hilton, and, having issued an execution on it, a considerable amount of personal property was levied upon by the sheriff. Thereupon, A. Belle Hilton filed a property claim, and an issue in interpleader was framed, wherein she was named as the plaintiff and the Liebig Manufacturing Company as the defendant. On October 3, 1913, she presented her petition to this Court, setting forth that the Liebig Manufacturing Company was a foreign corporation, and, because of this, she claimed it should enter security for costs. Security for costs is a matter not fixed by any statutory provisions, but, being a question of practice, is regulated by Rule of Court or local usage. By it is understood the giving of a recognizance by a non-resident plaintiff in an action already commenced, binding him and his sureties to the payment of all costs, including those already accrued or likely to accrue, in case he should not prosecute his suit with effect. The object of the rule requiring security for costs, where the plaintiff or complainant is not a citizen of the district or state, was to secure the officers' fees at all events, whether the plaintiff prosecute his suit with effect or otherwise, leaving him to recover from the defendant if he succeeded on the trial. In Pennsylvania, security for costs may be required of a non-resident plaintiff, and, if applied for, must be given by a non-resident, though he be actually within the jurisdiction of the Court; so, if a plaintiff removes to another state after the institution of a suit, he must give security for costs; but the defendant must apply as soon as the facts come to his knowledge. See Wadlinger on the Law of Costs in Pennsylvania, page 63. iff's interpleader must give security, the It is, however, urged that this Court, in Freedman v. Morrow Shoe Manufacturing Company, to November Term, 1886, No. 15, Patterson, J., ordered the defendant to furnish a bond in the sum Our Rule of Court provides that, "in of one hundred dollars to secure the paycases where the plaintiff resides out of ment of costs, the defendant being a the state, in qui tam actions, or where the corporation of the State of New York. plaintiff, after suit brought, has been Conceding this to be true, we do not discharged under the insolvent or bank- think that it should be followed by us. It is based neither upon a Rule of Court rupt laws, the defendant, on motion and affidavit of a just defense against the nor upon any authority contained in the text books, and the case was probably whole demand, may have a rule that the not seriously argued at Bar when the plaintiff give security for costs, return-order was entered. We conceive it to be able on a day certain to be fixed by the Court. Upon the rule being made abso- follow it. an erroneous principle and decline to lute, the Court may direct security to be entered, and, upon a failure of the plaintiff so to do, may direct the entry of a judgment of non-suit." See Rule XIII, of the Rules of the Common Pleas Court, page 18, section 1. It will be observed, however, that this applies only to the case of a plaintiff, and that no provision is made that a defendant shall give bail for costs; and while it has been held that a non-resident claimant in a sher The rule is, therefore, discharged. Quarter Sessions. Commonwealth v. McNew. Complaint by husband against wifeQuashing of indictment-EvidencePresumption. An indictment for adultery will not be quashed on motion because the information was made by the husband of the defendant. This question should have been raised on a proceeding for discharge before the indictment was found. Where, in such case, the husband testified before the grand jury, it is presumed, in the absence of evidence that he testified generally, that he testified only as to what he was competent to testify, as to prove the marriage. Q. S. of Lancaster County. November Sessions, 1913. No. 14. Indictment for adultery. December 27, 1913. Opinion by LANDIS, P. J. In this case, the complaint purports to have been made by H. Clayton McNew against the defendant, who is his wife, and upon this ground chiefly we are asked to quash the indictment. As we recently held, after a reference to all the principal cases, in Commonwealth Mozart, 30 Lanc. Law Review, 147, that wife cannot make an information against her husband for adultery, of course, the same rule will apply when the husband makes an information against his wife. It is unnecessary to again go over the cases upon this point, and assuredly, after so determining, we ought not, under the principle of stare decisis, to change the conclusion there arrived at, without some authority from an Appellate Court. That, however, was a hearing on habeas corpus, and while there may be no good reason for making a difference between a discharge on a writ of that kind when such a complaint is made and the quashing of an indictment. based upon the same kind of a complaint, yet there does seem to be such a distinction made by the Courts. In Commonwealth v. Brennan, 193 Pa., 567, a defendant was charged with murder in an unsigned information. After trial and conviction, the Supreme Court, on appeal, in a per curiam opinion, said: "The defendant was tried the Grand Jury upon examination of upon an indictment found regularly by witnesses after information made before a magistrate. A trial was had upon the merits and the defendant was duly convicted of murder of the first degree. On the trial, a motion was made to quash the indictment because it was not found after an information sworn to and subscribed before the committing magistrate. While the defendant might have been heard on that subject upon a proceeding to be discharged from custody. on the ground of an illegal commitment, it is certainly too late after indictment found upon the trial of the cause. The validated for any such reason." finding of the indictment cannot be inIt is true that, in that case, and in the case of Commonwealth v. Schoen, 25 Sup., 211, the question of quashing the indictment was raised either on or after the trial; but the case of Commonwealth v. Dingman, 26 Sup., 615, seems to cover that ground. It is there held that "a prisoner may raise any question touching the legality of his arrest upon a proceeding to be discharged from custody; but if he has given bail to answer the charge, he cannot, after indictment found, raise such questions by a motion to quash." In York City v. Hatterer, 48 Sup., 216, Porter, J., said: "The defendant might have raised any question touching the legality of her arrest upon a proceeding to be discharged from custody, but having voluntarily come into the Court below and presented her petition for the allowance of an appeal, she is not now in position to raise such questions." this be the law, it is clear that a motion to quash, based upon this ground, can not be sustained. If As to the first reason, that the husband |