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At the hearing of the motion it appeared, are, restrained from proceeding further to exethat the Majestic Apartment House Company cution under the writ of fieri facias issued unwas incorporated for the purpose of purchas-bert Simonov. Majestic Apartment House Co.,

der the judgment in the cause entitled "C. Hering land and building thereon an apartment C. P. No. 2, September term, 1913, No. 3536, house and hotel and conducting a general which was levied upon the stock, fixtures, and apartment house and hotel business.

household furniture and contents of the Majestic

Apartment House Company, and more particuThe property of the company was subject to larly from proceeding further with the sale of two mortgages, the first to the Real Estate such property advertised to take place upon May Trust Company of Philadelphia, trustee, to 13, 1914; and that such writ shall be retained secure the company's $1,000,000 bond issue of the final disposition of the fund realized by the

in the hands of such sheriff as unreturned until March 20, 1910, and the second executed on sale of said property so levied upon at the hands January 25, 1909, to the Security Trust Com- of the Real Estate Trust Company of Philapany of Camden, X. J. to secure its second delphia, trustee, etc., under its above-entitled bond issue of $500,000 of January 25, 1909, lien upon said property so levied upon as the

foreclosure bill, as set forth in said bill, such and conveying the same property conveyed said Č. Herbert Simon acquired by virtue of in the first mortgage, and subject to the lien said levy to be maintained and relegated and atof the first mortgage.

tached to the fund to be produced by the trus

tee's sale aforesaid, the decision of all questions On December 13, 1913, C. Herbert Simon of rights in said

fund priority, and order of lien obtained a judgment against the company for and awards thereunder, to be decided at the the sum of $9,625.82, and on the same day is time of the distribution of such fund, the prosued an execution directed to the sheriff of to be earmarked in the hands of such trustee,

ceeds of the property levied upon under said writ Philadelphia county, to levy on the stock, fix and to be distributed as a separate fund, reptures, and household furniture of the hotel resenting in all respects, as to rights of particiand apartment house, and on December 15, pation therein, the property itself, as though the 1913, Joseph R. Wainright secured a judg-sale.

liens thereon had not been discharged by the ment against the company for $15,220, and This order to be conditioned upon the Fidelity caused execution to be issued, which was Title & Trust Company of Pittsburgh, the holdlevied upon the same property. It was con-House Company, secured by the mortgage to the

er of all the bonds of the Majestic Apartment tended by the execution creditors that the Real Estate Trust Company of Philadelphia, mortgage did not cover the personal property trustee, stipulating and agreeing of record in and fixtures of the company.

this cause that it will bid, or cause to be bid, at On January 14, 1914, on application of a decree of foreclosure, of such property so levied

the sale by such trustee as aforesaid, under the stockholder of the company, the court ap-upon, a sum of at least $30,000, and upon enterpointed receivers, who were operating the ing the usual injunction bond in the sum of apartment house and hotel. Subsequently, on

$12,000. February 17, 1914, the court directed the Argued before FELL, C. J., and BROWN, trustee to institute foreclosure proceedings on POTTER, ELKIN, and MOSCHZISKER, JJ. the first mortgage. The trustee filed the foreclosure bill on March 10, 1914, and averred,

Walter Biddle Saul, of Philadelphia, for apinter alia, that the execution judgment cred- pellant. Joseph de F. Junkin, of Philadelitors above mentioned claimed that the furni. phia, for appellee Real Estate Trust Co. ture and fixtures in said hotel property were not covered by the mortgages, and prayed PER CURIAM. The decree appealed from that an injunction be granted restraining was made in the exercise of the chancery such creditors from proceeding further with powers of the court. It does not deprive the their execution. The court entered the fol- appellant of his right to have his execution lowing decree:

satisfied out of the proceeds of the sale of And now, to wit, May 11, 1914, upon con- the personal property of the Majestic Apartșideration of the bills for restraining orders filed ment House Company, if he has such right. in the above-entitled causes by the Real Estate The bond given by the Fidelity Title & Trust Trust Company of Philadelphia, trustee, etc.; Company insures the payment for said proppraying inter alia that C. Herbert Simon and the sheriff of Philadelphia county should be erty of a sum largely in excess of what will restrained as to the execution levied upon cer- be required to pay the appellant, if he has the tain personal property of the Majestic Apart-preference which he claims. Whether he has ment Ilouse Company, in the cause entitled "C. such preference can be determined by the Herbert Simon v. Majestic Apartment House Co., c. P, No. 2, September term, 1913, No. court after due consideration upon final hear3536," and after due hearing in open court by ing or on distribution of the proceeds of sale this court in conjunction with the president made by the receiver. judge of the court of common pleas No. 2, and at the conclusion of such hearing, by consent of

We have not been persuaded that we should counsel, the said cause, entitled in the court of depart from the rule as to noninterference common pleas No. 2, as above, was transferred with preliminary injunctions, and the appeal to this court to the cause of the first of the is dismissed without prejudice to any rights above-entitled numbers, it is ordered that C. Herbert Simon and A. Lincoln Acker, high sher: of the appellant; the cost to be disposed of iff of Philadelphia county, be, and they hereby on final hearing.

(245 Pa. 567)

averment in each, as to the cause of action, McLENNAN v. PUBLIC UTILITIES was to the truth of the facts set forth “to CONST. CO.

the best of deponent's knowledge and belief."

The order appealed from is affirmed. (Supreme Court of Pennsylvania. May 22,

1914.) GARNISHMENT (8 87*)-FOREIGN ATTACHMENT

(245 Pa. 569) SUFFICIENCY OF AFFIDAVIT.

In re HERSPERGER'S ESTATE. An affidavit to the cause of action in foreign judgment proceedings was insufficient,

(Supreme Court of Pennsylvania. May 22,

1914.) where it was not positive but concluded with the words "all of which facts are true to the 1. WILLS (8 55*)-ISSUE DEVISAVIT VEL NON best of deponent's knowledge and belief."

– TESTAMENTARY CAPACITY SUFFICIENCY [Ed. Note.-For other cases, see Garnishment,

OF EVIDENCE. Cent.Dig. 88 156-159, 163–166; Dec.Dig. 8 87.*) Evidence, on an issue of devisa vit vel non,

held to show that testator possessed testamenAppeal from Court of Common Pleas, Erie tary capacity at the time of the execution of County.

the will. Rule by D. McLennan against the Public

[Ed. Note.-For other cases, see Wills, Cent. Utilities Construction Company, a corpora- Dig. && 137–158, 161; Dec. Dig. 55.*) tion, to show cause why a foreign attach- 2. WILLS (8 111*)-EXECUTION-SUFFICIENCY. ment should not be dissolved. From a judge weakness and being confined to his bed and not

Where testator, on account of physical ment making the rule absolute, plaintiff ap- having a pen with which he was familiar, was peals. Affirmed.

unable to write his name legibly, and at his

attorney's suggestion made his mark, after The affidavit to the cause of action con- which the will was witnessed by the attorney cluded, “All of which facts are true to the and two other witnesses, the execution was best of deponent's knowledge and belief.” sufficient. The plaintiff filed an amended statement of

[Ed. Note. For other cases, see Wills, Cent. demand and an affidavit thereto which had Dig. 88 267–275; Dec. Dig. g' 111.*1 the same conclusion as the affidavit to the Appeal from Orphans' Court, Erie County. original statement. The court made abso In the matter of the estate of Amand Herlute the rule to dissolve the attachment. sperger, deceased. From a decree refusing

Argued before FELL, C. J., and BROWN, issue devisavit vel non, and dismissing an apMESTREZAT, POTTER, and ELKIN, JJ. peal from probate of will, Joseph Hersperger

Clark Olds, of Erie, for appellant. Frank appeals. Affirmed. Gunnison, of Erie, for appellee.

Walling, P. J., filed the following opinion

in the orphans' court: PER CURIAM. The rule to show cause The will of Amand Hersperger was regularly why the foreign attachment issued in this proved and admitted to probate by the register case should not be dissolved was made ab

of Erie county, and from that decree one of

the sons of the said Hersperger has brought apsolute for the reason that the affidavits to peal to this court and asked for an issue. The the cause of action were not positive. As

As principal question raised is as to the testamenearly as 1789 it was decided in Miltenberger tary capacity of Amand Hersperger at the v. Lloyd, 2 Dall. 79, 1 L. Ed. 297, that foreign time of the execution of the alleged will.

[1] We have carefully read and considered all attachments would be dissolved, if under

the testimony offered upon that question, and the same circumstances, in the case of a ve are clearly satisfied that he was competent capias, common bail would be ordered. In to make the will in question. There is a preJacoby v. Gogell, 5 Serg. & R. 450, it was sumption of competency, which is supported by

the clear and satisfactory evidence of the atheld that it was not sufficient for a plaintiff torney who prepared the will, and who was well in a foreign attachment to swear to facts acquainted with Mr. Hersperger, had long been from which a jury might or might not infer his legal adviser, and conversed with him freea contract, and that the oath must be posily and fully in his own language. From the

clear and satisfactory account of the transactive as to the making of the contract or to tion given by the attorney, who had exceptional facts from which a contract would be neces- opportunities for knowing the mental conditiva sarily implied. In Hallowell v. Tenney Can- and ability of the testator, we are fully satisning Co., 16 Pa. Super. Ct. 60, it was said has had large experience in the preparation of

fied of his testamentary capacity. Mr. Curtze by Rice, P. J., that:

wills, and is of such high standing at our bar "Upon a rule to show cause of action, a posi- that we necessarily give to his testimony much tive affidavit must be filed, such as would, if weight. His testimony is also corroborated by false, subject the affiant to indictment for per- that of Father Bender, the spiritual adviser of jury; therefore the plaintiffs' unsworn state- Mr. Hersperger, and who saw and conversed ment of claim will not be looked to by the with him, as we recall the testimony, twice court to supply fatal omissions from the affi- each day during his sickness, and also by the davit.”

testimony of the attending physician, Dr. Wei

bel, who saw and conversed with Mr. HerspergWhether a supplemental affidavit should be er twice a day during such sickness. These considered by the court, on the hearing of a three witnesses are entirely disinterested. They rule to show cause of action, it is unneces- daughters, who attended upon him during his

are corroborated, however, by the testator's two sary to consider, since the one offered was last sickness, but who are of course interested no more positive than the original. The) in the result of this case.

*For other cases see same topic and section NUMBER in Dec. Dig. &

Dig. Key-No. Series & Rep'r Indexes

·

Mr. Hersperger was taken sick on Sunday clearly satisfied that an issue should not be ormorning, with what is called senile pneumonia, dered. and died on Thursday morning. On the advice And now, July 14, 1913, the rule for an issue of Father Bender, he sent for Mr. Curtze on in the above case be and the same is hereby reMonday and then gave details as to the prep- fused, and the appeal of Joseph Hersperger aration of the will. Mr. Curtze returned with from the probate of said will by the register in the will on Tuesday, and it was then executed. above case is hereby dismissed, at his costs. Now all the evidence for proponents is to the

The court refused the rule for an issue effect that, up until Wednesday afternoon or evening, Mr. Hersperger was in his right mind, devisavit vel non' and dismissed appeal from and that thereafter he became delirious and the probate of the will by the register. Josdied, as above stated, on Thursday morning.

eph Hersperger appealed. On behalf of the contestants we have the testimony of a number of Mr. Hersperger's chil

Argued before FELL, C. J., and BROWN, dren and grandchildren to the effect that they MESTREZAT, POTTER, and ELKIN, JJ. saw him on different days during his last sickness, beginning, perhaps, with Sunday evening,

Charles A. Mertens and P. D. Hyner, both and that he was delirious and irrational and of Erie, for appellant. C. L. Baker, of Erie, unfit to transact any business. They reached

They reached for appellees. this conclusion largely from the fact that they were in the room with him and he did not converse with them. Some say he failed to recog

PER CURIAM. The order appealed from nize them. Some say he raved and showed oth- is affirmed on the opinion of Judge Walling, er evidences of delirium ; but, from all the evidence in the case, we are satisfied that their testimony is not reliable. They are all inter

(245 Pa. 580) ested, directly or indirectly, in having the will set aside. Their opportunities of knowing Mr.

In re DOWNER’S ESTATE. Hersperger's mental condition are not very sat

Appeal of JOHNSON. isfactory. Mr. Hersperger was about 80 years (Supreme Court of Pennsylvania. of age, sick in bed, and undoubtedly suffering

May 22, more or less from the disease, and the witnesses

1914.) who only saw him casually might easily mis- CONVERSION (16*)—DIRECTIONS IN WILL. take his moanings for ravings, especially as they A will which, after a specific bequest, aphad very little, if any, talk with him.

pointed an executor “with power to sell as he It is a matter of common experience that may think best any realty of which I may die men in sickness do not all act alike. Some seized, to execute deeds therefor, and to make sick men do not wish to talk or be talked to, distribution of the proceeds thereof as personaland Mr. Hersperger's disinclination to talk ty, and of all personalty of which I may die with some of his children and grandchildren possessed, to those legally entitled thereto acduring his sickness may be more the result of cording to the intestate laws of the state of an inclination not to talk than evidence of men- Pennsylvania,” worked an equitable conversion tal unsoundness. Some importance is attached into personalty of all of testatrix's realty. to his alleged repeated statements that he wish [Ed. Note.-For other cases, see Conversion, ed to get out of bed. Perhaps he did, and, in Cent. Dig. $$ 38-40, 42, 43; Dec. Dig. $ 16.*) ] any event, too much importance should not be attached to what he said as to that.

Appeal from Orphans' Court, Fayette As to whether or not a man is delirious is a County. matter of opinion, but, supposing all the wit

Adjudication of the Estate of Caroline A. nesses on both sides are entirely candid, then it appears that notwithstanding the show of Downer, deceased. From a decree dismissing delirium, as testified to by the contestants' wit- exceptions to the adjudication, David D. nesses, he still was of sound mind, had a clear Johnson appeals. Affirmed. conception of his property, how he wished to dispose of it, and was fully competent to make From the record it appeared that Caroline and did make a valid will. Having considered A. Downer died, leaving the following will: all the evidence, it is so strongly in favor of

"I, Caroline A. Downer, of Uniontown, Fayhis competency that a verdict against the will ette 'county, Pennsylvania, hereby make my last could not be sustained, and an issue should not will and testament: First: I direct my exbe awarded. ing in bed, and of not having a pen with which of my estate, the interest thereof to be used to [2] On account of physical weakness, of be-ecutor, hereinafter named, securely to invest the

sum of fifteen hundred ($1500.00) dollars out he was familiar, the testator seemed to be un- keep in repair the family cemetery lot in Oak able to write his name legibly, and therefore, at Grove Cemetery, Uniontown, Pennsylvania, and the suggestion of the attorney, made his mark. to keep in proper repair the tomb stones théreThe will was witnessed by the attorney and by

on. two other citizens who speak the German lan- Uniontown, Pennsylvania, executor hereof, with

Second: I appoint David D. Johnson of guage, all three of whom made due proof of the out bond, 'and with power to sell as he may execution of the will before the register. When think best any realty of which I may die seized, their testimony was taken on this rule, the two to execute deeds therefor, and to make distriwitnesses, aside from the attorney, failed to bution of the proceeds thereof as personalty, remember all of the matters necessary to a and of all personalty of which I may die posproper execution of the will, but as to that the sessed, to those legally entitled thereto accordtestimony of the attorney is full and satisfacto-ing to the intestate laws of the state of Pennry, and there is other testimony tending to sus- sylvania. In witness whereof, I have hereunto tain the testimony of the subscribing witnesses, set my hand and seal, this 15th day of January, and we believe that, taking all the testimony, 1910,

Caroline A. Downeer. [Seal.]" it clearly shows a due execution of the will ; and as to that we believe the case is ruled in Testatrix left surviving her 9 first cousins favor of the proponents by the case of Rice's of the blood of her father and 15 other Estate, 173 Pa. 298, 33 Atl. 1100. There is first cousins of the blood of her mother. The no evidence whatever of undue influence or of any improper conduct on behalf of the principal controversy in this case arose over the disbeneficiaries, and, on the whole case, we are tribution of the net proceeds of the sale of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

certain real estate, title to which testatrix W. H. Unger and A. L. Snyder, both of held by descent from her father and from Shamokin, for appellant.

Shamokin, for appellant. W. H. M. Oram, certain of her brothers and sisters in such of Shamokin, for appellee. manner that it retained its character as ancestral property, which, in case of intestacy, BROWN, J. Appellant's husband was a would have descended to the heirs who were miner in the employ of the appellee, which of the blood of testatrix's father. The audit-owned and operated a coal mine in Northing judge held that the will worked a con- umberland county, this state. The defendant version into personalty of the entire real es- company had two cages at the mine for lettate and awarded the fund to the 24 first ting down and bringing up men working in cousins in equal shares. The nine first cous- it, for hoisting coal, and for lowering empty ins ex parte paterna, of whom the appellant, cars. These cages were so operated that, David D. Johnson, was one, filed exceptions when one of them ascended to the mouth of to the adjudication, claiming the whole fund the mine, the other descended to the bottom as real estate. The court dismissed the ex- of the shaft. In going into the mine on the ceptions.

morning of July 12, 1912, the appellant's hus- Argued before BROWN, MESTREZAT, band descended in the south cage, coming out POTTER, ELKIN, and STEWART, JJ. of it on the east side. A little while after

W. J. Sturgis, Charles A. Tuit, and Lee wards he lighted his lamp and started apSmith, all of Uniontown, for appellant. D. parently for his work, when he was crushed M. Hertzog, of Uniontown, for appellees.

to death by the descent of the north cage upon him.

In this action, brought by his PER CURIAM. The clearly expressed in- widow, the court below directed a nonsuit, tention of the testatrix is that her entire es-on the ground of the contributory negligence tate is to be distributed as personalty. After of her husband, and, from the refusal to take authorizing her executor to sell any real | it off, she has appealed. . estate of which she may die seised, her ex

Any presumption that the deceased had plicit direction is that the proceeds of the been exercising due care when the cage desale of the same shall be distributed as per

scended upon him was so clearly overcome sonalty "to those legally entitled thereto ac-by the testimony of three coemployés that cording to the intestate laws of the state of the trial judge was constrained to hold there Pennsylvania.” The learned court below cor- could be no recovery. These three witnesses rectly held that "all of the essentials of an

were with the deceased at the bottom of the equitable conversion are set forth in this shaft at the time he was killed. It was well will."

lighted, one of the witnesses testifying "there Decree affirmed, at appellant's costs.

was enough lights there to see plainly all around"; and the deceased was thoroughly

familiar with the situation and all its sur(245 Pa. 583)

roundings, having worked there every day BUDNAR v. MINERAL R. & MINING CO. for the six preceding weeks. While two of (Supreme Court of Pennsylvania. May 22,

the witnesses did not see the cage descending 1914.)

upon him, and were therefore not able to tell MASTER AND SERVANT ($ 239*)-DEATH OF just how the accident happened, the third, SERVANT-CONTRIBUTORY NEGLIGENCE.

who saw it, clearly and unmistakably deWhere a coal mine employé was killed from scribes just how the unfortunate death ocwalking beneath a descending elevator when it curred. His testimony was that the deceased, was but three or four feet above him, at a place after lighting his lamp, went directly towards which was well lighted and with which he was familiar, he was guilty of contributory negli- the cage and walked right into the sump, a gence, barring recovery for his death.

slight depression at the foot of the shaft, un[Ed. Note. For other cases, see Master and der the cage, and that, when he got under Servant, Cent. Dig. $$749, 750; Dec. Dig. $the cage, it was descending upon him but four

or five feet above him. Under this testimony, Appeal from Court of Common Pleas, the contributory negligence of the deceased Northumberland County.

was not a question of fact for the jury, but a Trespass by Annie Budnar against the Min- necessary legal conclusion, from which the eral Railroad & Mining Company, for death court could not escape. The very instant the of plaintiff's husband. From an order refus- deceased stepped into the sump the conseing to take off nonsuit, plaintiff appeals. Af- quences of his negligence were brought home firmed.

to him. McDonald v. Iron & Coal Co., 135 Argued before FELL, C. J., and BROWN, Pa. 1, 19 Atl. 797.

Pa. 1, 19 Atl. 797. Further discussion is unMESTREZAT, ELKIN, and MOSCHZIS-called for. KER, JJ.

Judgment affirmed.

239.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(112 Me. 214)

and local licenses therefor, issued as hereinafter STATE v. LITTLEFIELD.

provided, shall be punished for each offense. (Supreme Judicial Court of Maine. Oct. 5,

Section 15 of the same chapter defines the 1914.)

words "itinerant vendor" as follows: 1. COMMERCE (8 40*) - HAWKERS AND PED

"The words 'itinerant vendors for the purDLERS (8 3*)-INTERSTATE COMMERCE-WHAT

poses of this chapter shall be construed to mean CONSTITUTES-LICENSES.

Accused, a local merchant, took orders in and include all persons, both principals and an adjoining town for the delivery of goods sient business in this state, either in one local

agents, who engage in a temporary or tranwith the understanding that the orders were to be filled by persons outside of the state. There ity or in traveling from place to place selling after a large shipment was made to accused, goods, wares and merchandise, and who, for the who sorted out the goods required to fill the lease or occupy any building or structure for the

purposes of carrying on such business, hire, orders and reshipped them to the adjoining town, exhibition and sale of such goods, wares and Held, that he was engaged in interstate commerchandise, or who sell goods, wares and merdler required by Rev. St. c. 45, § 1, to procure chandise, at retail from a car, steamer or ves

sel." a license.

[Ed. Note. For other cases, see Commerce, The facts are undisputed, and it is agreed Cent. Dig. $$ 29, 30; Dec. Dig. $ 40;* Hawk- that the evidence may be considered an ers and Peddlers, Cent. Dig. $$ 3-6; Dec. Dig. agreed statement of facts. $ 3.*]

The defendant, at the time complained of, 2. HAWKERS. AND PEDDLERS ($ 3*)-WHO ARE -"ITINERANT VENDOR"-"BUSINESS."

was a citizen of Wells, an adjoining town Where accused, a general storekeeper, after to the town of York, in the county of York, taking orders from residents of an adjoining and was, and had been for a number of town to be filled without the state, shipped the years, engaged in the grocery business at goods, which had been consigned to him, with others, to the place of sale for delivery, and said Wells, and as a part of that business some of the purchasers repudiated their orders, sold at retail and at wholesale flour, grain, accused thereupon selling the uncalled for goods sugar, and feed. For a number of years prior from the car in which they were carried, he was to 1913, he had been selling flour, sugar, and not an itinerant vendor, within Rev St. c. 45, § 15, declaring that an itinerant vendor is a feed in car load lots to Mr. Plaisted, a merperson engaged in transient business either in chant of York, but in the spring of 1913 Mr. one locality or in traveling from place to place Plaisted gave up the handling of those goods, selling goods, and who, for the purpose of carrying on such business, sells goods at retail from and about six weeks prior to April 1st the dea car, for the term "business” signifies employ- fendant went to York and solicited and took ment, and accused was not employed in the busi- orders from residents of that town for grain, ness of selling small quantities of goods from flour, sugar, and feed, in quantities to load a the car.

[Ed. Note.--For other cases, see Hawkers and freight car, with the understanding that dePeddlers, Cent. Dig. $$ 3-6; Dec. Dig. $ 3.* fendant was to send the orders out of the

For other definitions, see. Words and Phrases, state to be filled. The defendant sent the orFirst and Second Series, Business, Itinerant ders out of the state for goods enough to fill Vendor.]

the orders taken in York and other places Report from Supreme Judicial Court, York and for his business at Wells, three or four County, at Law.

car loads in all. The goods arrived at KenneJohn G. Littlefield was charged with doing bunk on the tracks of the Boston & Maine business as an itinerant vendor without hav- Railroad, and the defendant sorted out of the ing procured the license required by law. goods, those to fill the orders taken in York, On report. Judgment for defendant.

placed them all in one car, and forwarded Argued before SAVAGE, C. J., and SPEAR, them to York village, some 12 to 15 miles disKING, HALEY, HANSON, and PHIL- | tant, by the Atlantic Shore Line Railway. BROOK, JJ.

The goods arrived at York village on April

3d, and the defendant delivered from the car Hiram Willard, Co. Atty., of Sanford, for to the parties in York the goods ordered by the State. Cleaves, Waterhouse & Emery, of them, and was paid the price agreed upon, Biddeford, for respondent.

the bills varying from $50 to $170 for each

party, except that, as the goods did not arHALEY, J. This is a complaint and war-rive in York as early as expected, some of rant against the defendant for conducting the parties who had given orders did not business as an itinerant vendor in the town call for the goods, and those goods the deof York in the county of York, by selling fendant sold from the car, selling to one from a car, at retail, goods, wares, and mer- Ralph Merrill two 100-pound bags of sugar, to chandise, without having procured the li-Gilbert H. Martin two 100-pound bags of sucenses required by chapter 45 of the Revised gar and one barrel of flour and two or three Statutes, and is before this court upon re- bags of grain, and to Charles Blake one 100port. Section 1 of said chapter reads as fol- pound bag of sugar. The state claims a con

viction for two reasons: lows:

First. The delivery from the freight car by "Every itinerant vendor who shall sell or expose for sale, at public or private sale, any the defendant of the goods ordered by the goods, wares and merchandise without state l parties who received them; they having

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

91 A.-60

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