the pistol did not intend to kill the decedent, or did not intend to do great bodily harm to him, but that the killing was accidental, then the verdict of the jury must be for the defendant." This point is a correct statement of the law, and is not covered by the general charge. The defendant was entitled to have it affirmed. In Com. v. Deitrick, 218 Pa., 36, it is said: "It is not sufficient to prove the killing alone, or that it was done with a deadly weapon, but such facts must be shown as will warrant a jury in finding that it was intentional or wilful. If the killing was accidental, although done with a deadly weapon, it cannot be said to be either intentional or wilful, and if neither intentional nor wilful, the crime of murder is not made out." Because of this error we make absolute the rule for a new trial. Orphans' Court. Estate of Tobias Landis, dec'd. Issue devisavit vel non-When refused. An issue devisavit vel non at the instance of nephews and nieces of the testator should be refused where the testator was a man of more than ordinary force who had married at seventy-one when a bachelor a woman who had been taken from an institution and raised in his family, after which they had lived together eighteen years and he had his will written when alone with his counsel. In re Citation for Issue devisavit vel non. O. C. of Lancaster County. August Term, 1914, No. 71. Coyle & Keller, for citation. Appel & Appel, contra. impinge his testament. It was regarded by the contestants as a sign of diminished vigor, and therefore evidence of testamentary incapacity, because he showed some deference to his wife, whom he married late in life. It has usually been looked upon as becoming for a husband to give considerate attention to his wife's wishes and as evidence of the reverse of decadence on his part. It is probable that in the few and unimportant instances when he seemed to follow suggestions of his wife that he only gave expressions to his own promptings, though having the appearance of an acquiescence in her proposals. It is not an agreeable surprise when at bachelor uncle marries at seventy-one, as did the testator. Yet this one had eighteeen years of apparently happy married life. But however estimable his wife was, the fact that she had been taken by the testator's father from the poorhouse or an orphanage, and thereafter made her home with them, naturally did not exalt family pride, and an absolute suppression of feeling by nephews and nieces is almost more than could be expected of human nature. Such being the history of the testator's wife, there was some feeling after the marriage. The contestants disavow any; the widow says she had some because: "They brought me to that"; "They turned their back"; "They often said I was nothing but a poor Dutch thing when I came into the family"; "A poor Dutch thing I know I was, but they need not said it"; "Q. Did you talk to him in a friendly way about them, or otherwise? A. No, not in a very unfriendly way, because from childhood up I nursed them and treated them as well as I couldbetter than they treated me sometimes. From the testimony it can be gathered that of the two, the testator was more January 28, 1915. Opinion by SMITH, sensitive than his wife to the comments P. J. The material testimony in this case is not conflicting. The evidence establishes conclusively that the testator was more than an ordinary man. Paradoxical as it may seem, to his recognized assertive will can be traced a cause for the attempt to believed to have been made about her. Whether or not there was any feeling between these parties is not material for the purpose of this case. the purpose of this case. Not only were the contestants not included among the beneficiaries under the will, but also about sixty others as near of kin to the testator as they, about whom no question as to feeling has arisen, fared no better. | nineties the frontier as a large determinIt is unnecessary to weigh the negative ing factor in American life ceased to testimony. exist; and we now find ourselves in the era of limited national opportunities and intensive development. Hitherto, the discontented American has enjoyed an option to move up or to move on. There is now little frontier to move to; and as room at the top' is the gospel for the exceptional man, it is hard to escape the conclusion that for the ordinary man the circle of opportunity is relatively narrower than it was in the free-land area. The testator was a man of more than ordinary force. There is nothing to show that he was not mentally strong, but on the contrary much that he was. Years before he died he went to his counsel, and when alone with him had his will written. There is no evidence of any attempt to unduly influence him, and the evidence sustains the opinion that none of those with whom he associated could have done so had they attempted. Had there been no testimony offered by the respondents, and if everything proved by the contestants is accepted, the Court could not permit on this evidence a verdict against the validity of the will to stand; and it would be a misdirected discretion to encourage litigation by certifying an issue devisavit vel non to the Court of Common Pleas, which could result only in a waste of time and money and an aggravation of unkindly feelings. The appeal is dismissed and an issue devisavit vel non is refused. Costs to be paid by the contestants. Legal Miscellany. Prof. Edward A. Ross Lectures at the John In a lecture before the John Marshall "The things that deflect the social current are not always battles, treaties, or laws; often they are things that never get into the newspapers at all. About twenty years ago American society turned the sharpest corner it has turned since the abolition of slavery; and yet the public did not notice it then, and scarcely realizes it now. "Through all our history the American people has developed in the presence of free land; but about the middle of the The frontier has made for social equality in this country. The artisan had to be paid a wage large enough to keep him from turning farmer himself. The abundance of opportunity of the frontier, coupled with equal access to these opportunities, produced a sense of social equality which gradually became a part of Americanism.' The frontier, too, made for political democracy. The younger states of the West have shown a strong tendency to sweep away the props of class rule, as against the tendency of the eastern states, particularly in our early history, in the direction of class government and the growth of vested interests. From the West at different times has swept eastward Jeffersonianism, Jacksonism, Lincoln Republicanism, grangerism, populism, Bryanism, and the new nationalism, together with such contemporary innovations as the direct primary, initiative, referendum, recall, and the popular election of United States Senators. "The first effect of the ending of the era of free land was a great enhancement in the value of the land already improved. In 1900 the average farm consisted of one hundred forty-six acres, and was worth $3,566; in 1910 it had only one hundred thirty-eight acres, but it was worth $6.444. The increase in the value of land naturally stimulated the movement for the drainage of swamp lands and the reclamation of arid tracts. Even the abandoned farms of New England began to be reoccupied. Hundreds of thousands of American farmers migrated into the Canadian northwest, where land can be obtained at compara tively low rates. And so, for the first | pellant and his wife when it was evident time in our history, Americans in large numbers have said good-bye to the stars and stripes forever, because they no longer waived over free land. The higher cost of living, which every polit ical party imagines it can cope with, is a direct result of the rise in the cost of land. The inordinate cheapening of the products of the soil can never again recur. "Another fundamental change in American society is the growth of cities. and the increased percentage of city dwellers. In thirty years there has been an increased proportion of city dwellers of over 18 per cent. This fundamental change has, of course, not been without its psychological effect upon the city dweller, who emphasizes, not such economic virtues as foresight and frugality, but the power of lavish expenditure and display as the measure of success. that neither of them knew that they had eavesdroppers. According to the witnesses the wife was bemoaning her fate, and said to appellant that he had forced her to take the entire responsibility, when he knew that he had made her commit the murder. The only reply made by the husband to this charge was to say: "Hush, Bessie, if you go to the penitentiary, you won't be gone over six months before you get a pardon. If they convict me, they will hang me.' Appellant contends that, inasmuch as the wife could not have been introduced to testify that she had charged defendant with the crime and he did not deny the charge, it follows that others could not be introduced to testify to this charge. This contention, the court, in effect, denies, but holds the evidence inadmissible for other reasons. The court says: "All of the evidence here in question shows that the defendant was sympathizing with his wife and was trying to comfort her with the assurance that she would soon be released. She was naturally hysterical and much depressed. Un "Certain very interesting changes are occurring in the family life. The tentacles of machine industry have slipped into the home and taken from it forever at least four-fifths of the work once done there. This change has meant the com-der these circumstances, was the defending of leisure to millions of wives, who are using their newly-gained leisure in social service and in study courses in women's clubs. "These changes are going on, and nothing will stop them. We must recognize what they imply and intelligently adapt our moral standards, laws and policies to them." -Chicago Legal News. Questioning Truth of Wife's Statements. Is evidence of a husband's silence or acquiescence in accusations of his wife admissible as an admission of guilt on his part? This was one of the issues in Riley v. State (Supreme Court of Mississippi) 65 Southern Reporter, 822. Riley was convicted of murder. His wife having been convicted of the same crime before appellant was tried, she and her husband were confined in jail together. Over objections of appellant, the trial court permitted several of the inmates of the jail to testify that they overheard a conversation between ap ant called upon to repudiate what his wife said to him. Was the charge 'made in such a way as to call upon him to deny it?' It is not always conducive to domestic peace for a husband to contradict the statements of his wife, and ordinarily the wise husband attempts to soothe and placate his irate spouse rather than to question her statements. Speaking for the average man, we are of opinion that appellant was not called upon to deny the statement of his wife. made under the circumstances surrounding them at the time. His failure to deny, dispute, or hedge meets with our idea of what a normally prudent and sensible man would naturally have done, and therefore the evidence had no probative value, but was probably very damaging to him with the jury.' We have received a very handsome new photograph of the United States. Supreme Court from the well-known photographers, Harris & Ewing, 1311 F Street, Washington, D. C. Copies may be obtained from this firm. the warrant there appeared the follow LANCASTER LAW REVIEW. ing clause: "You are hereby commanded to take the body of Mary Yeager, Apart VOL. XXXII.] FRIDAY, FEB. 26, 1915. [No. 17 ment, Corner East King & Christian Common Pleas-- Law Yeager v. Steigerwalt. Warrant Constable False arrest Act of March 21, 1772. Under the Act of March 21, 1772, 1 Sm. Laws, 364, no action can be brought against a constable for anything done in obedience to a warrant issued by a justice of the peace, until demand has been made upon the officer for perusal and copy of such warrant, and the same has been neglected or refused for the space of six days. Action for damages for false arrest. Rule to strike off judgment of non-suit. C. P. of Lancaster County. December Term, 1913, No. 33. C. E. Montgomery, for plaintiff. S. V. Hosterman and Coyle & Keller, for defendant. over Rhoads' Jewelry Store, if she be found in the said city or county, and bring her before the subscriber," &c. With the warrant, and in pursuance of it, the defendant, about ten o'clock a. m. of the same day, went to the place named therein, which is numbered No. 221⁄2 East King Street, Lancaster City, and he there found the plaintiff, who is a young woman, as she says, twenty-two years of age. She admitted that she told him her name was Mary Yeager, and also said to him that there was no one else of that name at that place. The defendant then told her that he had a warrant for Mary Yeager, 221⁄2 East King Street, to which she replied that there must be some mistake. He then told her that he would have to take her with him, and, after he had dressed, they together went out East King Street to Duke Street, at the corner of which Steigerwalt had left his automobile. He walked, as she says, about five feet behind her. They got into the automobile, and rode out Duke Street to Walnut Street, where he stopped the machine. She then got out and walked ahead to January 9, 1915. Opinion by LANDIS, the alderman's office, and, when they P. J. Upon the trial of this case, it was shown that one, H. P. Summers, constable, had received from H. B. Lippold a landlord's warrant against a woman by the name of Mrs. Mary Yager, which was dated July 13, 1913. Under this warrant he levied upon certain household goods belonging to her, and left them in the house occupied by her, numbered No. 471 Atlantic Avenue. It was testified that, subsequently to the levy, Mrs. Yager moved away from these premises, taking with her the goods thus levied upon, and that, thereupon, Summers, on September 25, 1913, appeared before Alderman Joel S. Eaby, of this city, and made a complaint against her for larceny by bailee of said property. Upon this complaint the alderman issued a warrant to the defendant, who was a constable of Manheim Township, and in arrived there, Steigerwalt said to the alderman: "This lady says she doesn't know anything about this matter, what she is arrested for," and the alderman. then told her what the charge was. After some conversation, she signed a recognizance for her appearance that afternoon at two o'clock, and Steigerwalt became bail upon it, and she then left and did not see the defendant afterwards. In the afternoon, about two o'clock, she came back to the alderman's office, with her aunt, and the alderman then discharged her, telling her that there was at mistake and that she should not worry about the matter. No evidence was presented in the case that, before the suit was brought, demand had been made of the defendant by the plaintiff, in accordance with the Act of 1772; and, in fact, her counsel frankly admitted on this argument that no such notice had ever been given. Therefore, after the plain- | trate, having a right to issue it, be served by a constable, whose authority does not extend to the district in which the defendant resides, no suit can be maintained against the constable for an alleged trespass in executing the writ unless a copy of it be previously demanded, agreeably to 6th section of the Act of 21st of March, 1772." In Commonwealth v. Yeisly, 6 Sup., 273, Rice, P. J., referring to the Act of March 21, 1772, said: "The purpose of this provision becomes plain when we look at the context. It was to protect constables in acts done in obedience to writs placed in their hands, notwithstanding a defect of jurisdiction in the justice or justices issuing them, and to inform the party aggrieved by such acts where to place the responsibility. The design of the section was to make the justice exclusively answerable for his own defaults. Where a constable has pursued his warrant, he can be affected with want of jurisdiction in the magistrate only where he is sued alone, having, after a proper demand, refused for the space of six days to furnish a copy of the warrant." In Magnussen v. Shortt, 200 Pa., 257, under a similar provision contained in the first section of the said Act, relating to justices of the peace, it was held that, "where A makes information before a justice of the peace that B has taken his property without leave or right,' not charging the taking to have been done feloniously, and B is arrested on a warrant based on this information, charging a felonious taking, and held to bail to answer a charge of larceny, and no notice is served on the justice of the peace before suit brought, as provided by the Act of March 21, 1772, neither A nor the justice of the peace is liable in an action of trespass for malicious prosecution." In this case, the Court granted a non-suit as to one of the defendants and gave binding instructions as to the other. In a per curiam opinion, the Supreme Court said: In this case, a verdict was rendered for the defendants by direction of the Court below, and the plaintiff appealed to this Court. An examination of the assignments satisfied us that no error was committed by the Court below tiff had closed her case, a motion for a non-suit was made on behalf of the defendant, and the Court ordered such a judgment to be entered. The plaintiff now asks that the non-suit be taken off. It is provided by the sixth section of the Act of March 21, 1772, 1 Smith Laws, 364, that "no action shall be brought against any constable or officer, or any person or persons acting by his or their order, and in his aid, for any thing done in obedience to any warrant, under the hand and seal of any justice of the peace, until demand hath been made, or left at the usual place of his abode, by the party or parties intending to bring such action, or by his, her or their attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, duly certified under his hand, and the same hath been neglected or refused for the space of six days after such demand; and in case, after such demand, and compliance therewith, by showing the said warrant, and giving a copy thereof, certified as aforesaid, to the party demanding the same, any action shall be brought against such constable, or other person or persons acting in his aid, for any such cause as aforesaid, without making such justice or justices, who signed or sealed the said warrant, defendant or defendants, that on producing and proving such warrant at the trial of such action, the jury shall give their verdict for the defendant or defendants, notwithstanding any defect or defects of jurisdiction in such justice or justices." In accordance with this Act, in Commonwealth v. Warfel, 157 Pa., 444, it was held that "no action can be brought against a constable for anything done in obedience to a warrant issued by a justice of the peace, until demand has been made upon the officer, and the same has been neglected or refused for the space of six days," and that "the condition imposed by the Act of March 21, 1772, I Sm. L., 365, requiring such demand to be made, is absolute and imperative, and is precedent to the right of action." In Varley v. Zahn, 11 S. & R., 185, it was held that, "if an execution issued by a magis- | |