'petent. He is, therefore, clearly excluded as a witness under the Act of 1887, and was not made competent to testify under the Act of 1891.

On account of the identity of interest of husband and wife, when one of them is incompetent to testify as a witness, the other also is incompetent Sec. 5, par. (e.), Act of May 23, 1887, P. L. 158. Dr. Bower is not only the surviving or remaining party to the thing or contract in action, but he is a person whose interest is adverse to the decedent's right. His wife was not a party to the thing or contract in action, and was not rendered incompetent on that ground, but was she a person whose interest is adverse within the meaning of the Act of 1887? Can she be considered a competent witness, when upon the ground of interest her husband is incompetent?

The rule of exclusion is founded upon the two-fold consideration of interest and policy. If the husband must be excluded on account of interest, so also must his wife be excluded on account of her unity of interest with him. So closely connected in interest are they, that in equity, in controversies affecting the interests of either, the testimony of both is considered as the testimony of one person only: Lower vs. Weaver 73 Pa. 443.

We are of the opinion that Mrs. Bower is incompetent.

If the claim rested upon the testimony of Dr. Bower and his wife it could not be established. But it does not ; there is competent evidence to establish the claim, with the testimony of Dr. Bower and his wife out of the case altogether.

The claimant, independent of his testimony and that of his wife, disputed as to competency, has by the testimony of witnesses, testifying without objection, established a prima facie claim, not for the full amount but sufficient to show a considérable indebtedness.

Mrs. Ida Howell, testified, that decedent was at the private hospital or home of the claimant from May 16, 1904, to September 1st, 1904, and John Harcher testified, that deceased was there from August till November 7th, 1904. The witness Coppinger, who conducts a private sanitarium, testified as to what would be a fair compensation for a patient taken to a doctor's home for treatment, suffering from chronic pulmonary consumption, a woman seventy-five years of age, confined continuously to her bed, furnishing her with board, lodging, nursing

and professional treatment. There was no objection to the testimony of the three above named witnesses.

The petitioner offered no evidence to rebut the competent proof offered by the claimant as to the validity of the claim, but confines himself merely to the allegations in his petition that the claim for medical services and medical attendance is absolutely unjust and unfounded.

In the schedule of indebtedness it is represented that Dr. Bower is a creditor to the extent of $815. Without attempting fully to pass upon the merits of the claim, it is evident that the testimony fails to show that there is less than $575 due from the estate to the claimant.

Now, March 31st, 1906, the petition, to revoke the order of sale for the payment of debts, is dismissed.

In the Court of Quarter Sessions of the Peace in and for the County of Lackawanna, No. 72, October Sessions, 1905.

RULE TO QUASH INDICTMENT.

Commonwealth vs. Alfred Harvey.

The Act of April 23, 1903, P. L. 268, relating to the use of automobiles on the public highways is unconstitutional because its title is misleading. Nothing is said in the body of the act about licensing any one other than the owner. The penalty prescribed is incurred through the owner's failure to procure the license. But so far as the title says anything on the subject it indicates a purpose to put the duty of getting a license only on the person of the operator and to attach the penalty to his default in that regard. There is a substantial variance between the title and the body of the act in that respect, and it brings Sec 6 within the prohibition of Sec. 3, Art. III, of the constitution, which requires that the subject matter of a statute shall be clearly expressed in its title.

Messrs. O'Brien, Martin & Fitzgerald, for plaintiff.

Mr. T. F. Wells, for defendant.

Opinion by Newcomb, A. L. J., May 14, 1906.

This indictment charges the defendant with a violation of the act of April 23, 1903, P. L. 268, relating to the use of automobiles on the public highways. The specific offence set out is the operation of an automobile on the streets of this city without first having procured a license therefor. He is described as the owner and as such is alleged to have violated the provision of the act requiring him to have such license. That provision is found in the sixth section, and is as follows: "No person shall be allowed to use or operate any such motor vehicle

upon any of the public highways aforesaid until the owner thereof shall have procured a license from one of the cities or counties of this commonwealth."

It is contended that the act is unconstitutional for two reasons: First, because its title is misleading, and, Second, because it doesn't operate uniformly on all persons and all vehicles or even all motor vehicles alike.

We are not convinced by the argument of the learned counsel that his second position is well founded. To doubt in such case is to decide in favor of the statute. Hence, in that particular we cannot say the act is invalid.

The first reason, however, is based upon a palpable constitutional defect. The section which defines the offence alleged in the indictment relates only to a license to be issued to the owner. Nothing is said there or elsewhere in the body of the act about licensing any one other than the owner. The penalty prescribed is incurred through the owner's failure to procure the license. But so far as the title says anything on the subject it indicates a purpose to put the duty of getting a license only on the person of the operator and to attach the penalty to his default in that regard. In our judgment there is a substantial variance between the title and the body of the act in that respect, and it brings section six within the prohibition of section three, Art. III, of the constitution which requires that the subject matter of a statute shall be clearly expressed in its title. This accords with the view expressed by Judge Walling in Com. vs. Densmore, 13 D. R., 639, and we feel no hesitation in saying that this section of the act upon which the indictment must stand or fall cannot be upheld. True, as was said by Judge Walling in the case referred to, the purpose of the legislature was wise and commendable for it aimed to secure the safety of the public in the use of the public highways. It is not unlikely that the intent was to require, not a personal license at all but, that the machine should be licensed, but, if so, the intent was inadequately expressed. And under well settled principles, especially applicable to penal legislation, we are not at liberty to travel outside the express words of the statute to determine its meaning: U. S. vs. Wiltberger, 5 Wheat. 76; U. S. vs. Harris, 177 U. S. 305.

"It is always unsafe to depart from the plain and literal meaning of words contained in legislative enactments, out of deference to some supposed intent or absence of intent which would prevent the application of words actually used to a given subject. Such practice is really substituting theories of a court which may, and often do, vary with the personality of the individuals who compose it, in place of the express words of the law as enacted by the law-making power": Pittsburg vs. Kalchthaler, 114 Pa., 547; Com. ex-rel, etc., vs. Fitler, 147 Pa., 288.

For the reasons stated, the rule to show cause is made absolute and the indictment quashed.

In the Court of Common Pleas of Lackawanna County, No. 1205, September Term, 1903.

RULE FOR A NEW TRIAL.

William Qualey vs. The City of Scranton.

It is generally agreed that a traveler's previous knowledge of a defect in the
highway whereby he is injured is not in itself sufficient, as a matter of
law, to prevent his recovery on the ground of contributory negligence.
It is not contributory negligence for one to pass over a dangerous bridge
with knowledge of its unsafe condition, in the absence of distinct notice
to him or to the public not to use it.

Messrs. C. P. O'Malley and M. J. & T. A. Donahoe, for plaintiff.
Mr. D. J. Davis, City Solicitor, for defendant.

Opinion by Kelly, A. L. J., May 14, 1906.

This case and the case of John J. Coyne vs. The City of Scranton, No. 1206, September Term, 1903, were tried together, and as the same reasons for a new trial are presented in both cases there is no need of a separate discussion of them.

The claim on the part of the plaintiffs was that on the afternoon of May 11, 1903, one E. H. Jordan undertook to drive the horse and carriage of John J. Coyne, the plaintiff in the other case, from the village of Minooka to the city of Scranton, for the purpose of getting the horse shod; that he invited Qualey to go with him and that Qualey accepted his invitation, and the two started towards Scranton, Jordan sitting on the left side of the carriage driving, while Qualey sat on the right side; that when they had gotten within the city lines, driving along. Cedar avenue towards the central city, they stopped to let a trip

of mine cars pass on a branch railroad which crossed the street and ran to a near by colliery, and just after they started on again, and while passing a street car going in the opposite direction where there was barely room to pass, as Jordan turned the horse out from the car track slightly in an effort to pass safely, the left wheel of the buggy went into a deep rut in the highway with such force that Jordan was thrown out, and that the horse went on with Qualey in the carriage trying to stop him for some forty or fifty feet, when the horse and carriage and Qualey all went over a steep unguarded embankment at the edge of the driveway, causing serious bodily injury to Mr. Qualey and damage to the horse and carriage belonging to Mr. Coyne. The negligence complained of was the alleged failure of the city to maintain the street in question at that point in a fairly safe and passable condition for public travel, in that the ruts so deep as to be dangerous were suffered to remain there for some months, and the embankment along the side of the driveway was allowed to remain for some months unguarded, after the city had notice of the conditions there. On the part of the defendant it was claimed that the cause of the accident was the fright of the horse at the passing street car, while Qualey and not Jordan was driving, causing him to run away and go over the embankment.

There was evidence at the trial to sustain either contention, and it was submitted to the jury for their determination and verdicts for the plaintiff were rendered. The verdicts were not excessive under the evidence, and, therefore, they should not be disturbed unless there was error committed in the trial.

The reasons assigned raise but one question, viz., that binding instructions should have been given in favor of the defendant. After a careful examination of the evidence we are of the opinion that both cases were clearly for the jury. No fault is found either with our rulings. or charge, and the only question pressed at the oral argument on this rule was that Jordan was guilty of contributory negligence in attempting to drive over the street in question when he knew of its dangerous condition. This is not the rule in cases of this character. "It is generally agreed that a traveller's previous knowledge of the defect in the highway whereby he is injured is not of itself sufficient, as a matter of law, to prevent his recovery on the ground of contributory negli