Watrous lot, which gives to this lot a front of over 100 feet on Ash street instead of 75 feet as called for in all the deeds. And we find that a few days before the bill was filed in this case, the owner of the Watrous lot erected another fence inclosing more land in the same direction, and actually attempting to take in a portion of the railroad company's right of way. The owners of the Lafrance and Watrous properties have disregarded the boundary line referred to and have succeeded, so far as the indications on the ground show, in wiping out the street provided and specified in all the conveyances. In doing this they naturally used the unoccupied part of the railroad company's right of way as a street; although in our judgment, they have not acquired a legal right to do so. For the reasons stated the second contention of the plaintiff fails for the want of adequate evidence to support it.

3. Plaintiff claims that the defendant company, being a railroad company incorporated under the act of 1868, has no right to use electricity as a motive power. Such an important question should not be determined on a rule for a preliminary injunction. We do not deny the right of the plaintiff to raise this question. The act of June 19, 1871, P. L. 1361, enables a private citizen to call upon a corporation to show by its charter that it has the power to do a certain act. This proposition has been sustained in several cases; but, in the present stage of the proceedings now before us, it would be extremely unfair to both parties to determine this question one way or the other: Not only is the question of too momentous a character, but it is, to say the least, a very doubtful one. Indeed, if we were called upon at the present time to decide this question, on a final hearing, we would be inclined to decide it against the contention of the plaintiff. We have read with much interest the cases that touch upon this question, viz.: Reeves vs. Traction Co., 152 Pa., 153; Fritz vs. Erie Pass. Ry. Co., 155 Pa., 472; Potts vs. Elevated R. R. Co., 161 Pa., 396; Gaw vs. R. R. Co., 196 Pa., 442. There are probably other cases which we have not cited. It is not necessary to discuss this question further at the present time.

On consideration of the whole evidence we are convinced that the plaintiff is not entitled to a preliminary injunction. The rule is, therefore, discharged, and the injunction refused.

A chartered street railroad is held, in Savannah, T. & I. of H. R. Co. vs. Williams (Ga.) 61 L. R. A. 249, to be a "railroad company,' within the meaning of a statute making railroad companies liable to one servant for injuries inflicted by the negligence of a fellow servant.

In the Court of Quarter Sessions of Lackawanna County, No. 258, February Sessions, 1904.

RULE TO QUASH INDICTMENT.

Commonwealth vs. Patrick J. O'Boyle.

A district attorney found a citizen charged with the crime of bribing councilmen. There was a warrant out for his arrest. The warrant could not be served because the officer could not find the defendant, after diligent search. The statute of limitations would run before the next grand jury. Held: That under these circumstances it was the bounden duty of the representative of the commonwealth to bring the matter before the court," and ask permission to present an indictment to the grand jury, then sitting, without a preliminary hearing or a previous binding over of the said defendant to appear at court.

W. R. Lewis, District Attorney, with him J. H. Torrey and F. E. Beers for Commonwealth.

Messrs. Willard, Warren, Knapp, C. P. O'Malley and J. T. Lanahan for defendant.

Opinion by Edwards, P. J., May 23, 1904.

While there are seventeen reasons assigned to show cause why the indictment in this case should not be quashed, we shall consider only two of them.

I. That the grand jury which found the indictment was influenced by an interview with Mr. Sturges published in a newspaper and circulated among the grand jurors and read by some of them while they were in session.

2. That the indictment was found without a preliminary hearing and a previous binding over.

At the time the motion for a rule was made we discovered the reference to the grand jury, and for the more secure safe-guarding of the secrecy of the grand jury room and of the rights of the grand jurors, we ordered the testimony to be taken in open court and not by depositions in the usual course of such proceedings. The testimony was, therefore, heard before the court in banc. It soon appeared that the proposition of counsel for the defendant was to call a number of the grand jurors and interrogate each of them as to the motives that influenced them in voting for a true bill against the defendant, and also to ascertain how far they were influenced in their action by the reading of the Sturges interview. The proposition was so palpably contrary to principle and precedent that we excluded the testimony and would not permit any grand juror to disclose the secrets of the grand jury.

As to the second reason we state that there can be no dispute as to the exact circumstances under which the indictment was submitted to

the grand jury. On January 8, 1904, the district attorney presented, under oath, the following petition to the court:

"The petition of W. R. Lewis, district attorney of Lackawanna County, respectfully represents: That an indictment has been drawn in his office in the above entitled case, charging the defendant, Patrick J. O'Boyle, with the offence of offering and paying bribes to Wade M. Finn and others, members of the Select Council of the City of Scranton, in March, 1902; that a warrant was issued on Saturday, the 2d day of January, 1904, by W. S. Millar, magistrate of the City of Scranton, and that diligent efforts have been made to serve the said writ, but that the defendant at the time of the 'issuing of the said warrant was and ever since has been out of the State of Pennsylvania, and that the said warrant has been returned “not served' for the reason that the defendant is not to be found within the State of Pennsylvania; that if the said indictment is not presented to the present grand jury the statute of limitations will have run against the defendant before the meeting of another grand jury. Wherefore, your petitioner prays that he may be permitted to present the said indictment to the grand jury now sitting, without a preliminary hearing or a previous binding over of the said defendant to appear at court."

With the petition was submitted the indictment, and the court, after due consideration, made the following order:

"Now, January 8, 1904, upon filing petition and affidavit, the district attorney is permitted to lay the within indictment against Patrick J. O'Boyle, the defendant, before the grand jury now in session, without a preliminary hearing of the said defendant or binding him over to appear at court. By the Court.”

The course pursued by the district attorney was in strict accordance with the procedure usual in such cases. Indeed it appears that unusual care was taken in this case. Counsel for defendant cite Com. vs. Brown, 23 Sup. Ct., 470. While it was so cited for a particular purpose, the Brown case is the latest and strongest authority against the defendant. Brown, with others, members of the school board, was charged with conspiracy to extort or take money for the appointments of school teachers. The matter was brought to the attention of the district attorney. In the exercise of his duty he presented an indictment against Brown, et al., to the grand jury. Confining ourselves to Brown, it does not appear that he was out of reach of process. There was no warrant, no preliminary hearing or binding over, no petition to the

court for leave to send in the indictment, and no formal submission by the court to the grand jury of the conspiracy investigation. It appeared that a committee of the board of public education had investigated the charges in question. This was reported to the district attorney and here follows a recital of what he did. He took the bill to one of the judges of the court. Using his own words: "Judge Beitler agreed with me that the matter was of sufficient public importance to prefer the bills, and authorized me, and in fact directed me, to send those bills before the grand jury. I went in person with the bills before the grand jury and the witnesses were then called and the bills were found.” Endorsed on the bill were these words: "Presented to the grand jury by district attorney by authority of A. M. Beitler, Judge." This endorsement was not written by the judge; nor was it placed there by his express direction. Nor was the statute of limitation a consideration in the case. If an indictment secured under such circumstances will stand the test, the indictment in the case at. bar should surely pass muster. The strictest forms of procedure were observed in securing it. Let us examine the situation. The district attorney found a citizen charged with the crime of bribing councilmen. There was a warrant out for his arrest. The warrant could not be served because the officer could not find the defendant after diligent search. The statute of limitation would run out before the next grand jury met. Under these circumstances, it was the bounden duty of the representative of the commonwealth to bring the matter before the court. He did this with much more formality than is usual in such cases; but we commend the practice and we think it is the correct method of procedure. Under the express authority of Com. vs. Brown the indictment must stand.

It is proper that we should refer to the testimony of the defendant and of the officer having the warrant in charge relating to the absence of the defendant, and to the effort of the officer to find him. This testimony taken as a whole could be made the basis of either of two inferences. Either the defendant was unavoidably absent on legitimate business, or he absented himself to avoid the service of the warrant in this case. If the reason of his absence was a controlling element in the determination of the question before us, we would be bound to adopt the inference that would favor the defendant; but the reason of his going away is of no consequence.

Defendant's counsel refer with some emphasis to the fact that those interested in the prosecution, viz., Mr. Sturges and others, have allowed

pensatory damages: Cooper vs. Keeler, 1 W. N. C., 115; Wilson vs. Whittaker, 5 Philadelphia., 358.

However averse we are to the trial of slander cases, we are bound, in these as well as in other cases, to hold juries to the duty of heeding the instructions of the court on matters of law.

Rule absolute.

In the Court of Comrion Pleas of Lackawanna County, No. 513, No

vember Term, 1903.

EXCEPTIONS.

In Re Appeal of Dunmore School District from Report of Borough Auditors for 1903.

Where exceptions to the settlement of a school district treasurer's accounts involve no dispute as to facts, it is a mistake to award an issue. Whether such treasurer is entitled to one or two per cent on the moneys passing through his hands, is a question of law and can be determined by the court upon exception.

An issue may be necessary to determine whether the treasurer is entitled to receive credit for the paying out of money raised by a temporary. loan, when there is doubt as to the authority under which the loan was made.

Hon. Thomas J. Duggan for plaintiff.

Messrs. I. H. Burns and G. S. Horn for defendants.

Opinion by Edwards, P. J. May 23, 1904.

The term "exceptions" is somewhat misleading in this proceeding, which is an appeal of the Dunmore School District from the report of the Borough auditors settling the account of the treasurer of the school district. The auditors filed their report in the office of the clerk of the court. The school district, after entering its appeal, filed exceptions to certain items in the report of the auditors. These exceptions relate only to the settlement of the school district treasurer's accounts and constitute the specifications of the grounds on which the appeal is based. The exceptions are to two items in the auditors' report.

The case was placed on the last argument list and came before the court in banc. The questions raised by the exceptions were not fully argued upon the merits. A contention arose between counsel on a question of practice. Counsel for the school treasurer claim that the -matter cannot be determined without an issue being first framed by the court and submitted to a jury in the orderly course of trial. Counsel on the other side contend that an issue will be allowed only where there is a dispute as to facts, because the act of assembly expressly says that