Kapp owed the full amount of the debt and costs, and the payment of the costs by him relieved the sureties of the obligation to pay them, but they are still liable for the damages awarded to the extent of the amount of the bond.

Now June 22nd, 1912, judgment is entered against the defendants for the sum of five hundred dollars.

KOMARONY vs. WINGER.

Justice of the Peaee-Jurisdiction-Trover and Conversion.

A justice of the peace has no jurisdiction in a suit for damages suffered by plaintiff through the refusal of defendant to permit the former to remove growing crops.

Trover and conversion does not lie for growing crops.

In the Court of Common Pleas of Lehigh County. Eugene Komarony vs. Joseph Winger. No. 73 January Term, 1911. Appeal from Judgment of Justice.

Milton C. Henninger, for Plaintiff.
George R. Booth, for Defendant.

Trexler, P. J., July 6, 1912. The suit was an action of trover and conversion. Before the justice the plaintiff claimed damages for cabbages, four acres of corn, clover hay, rutabagas, potatoes and cauliflower. The plaintiff was tenant on the farm and during his tenancy, the title changed and the defendant became the owner. The plaintiff claims that after he had left the farm, the defendant refused to allow him to enter and take away the above articles which were still on the ground. At the trial I directed a verdict for defendant. Assuming that the action was properly entitled before the justice as trover and conversion, it would not lie for the growing crops. If we look to the merits of the case and disregard the title of the case so far as the same appears on the justice's transcript, we find that the proper action would be trespass on the case. Of this action, the justice has no jurisdiction. In either view of the case the plaintiff cannot recover in the present action.

Now, July 6, 1912, motion for a new trial is overruled.

JONES vs. COUNTY OF LEHIGH.

Criminal Law-Fees-Justice of Peace.

A justice is entitled to fees in only one case, where separate prosecutions by one prosecutor are brought against same defendants on charges of felonious entry.

It seems that separate felonies of the same general nature may be charged in separate counts of the same indictment in case they are triable in the same manner and punishable similarly.

In the Court of Common Pleas of Lehigh County. Walter L. Jones vs. County of Lehigh. No. 52 June Term, 1912. Case Stated.

Lawrence H. Rupp, for Plaintiff.
Max S. Erdman, for Defendant.

Trexler, P. J., July 1, 1912. The agreement filed in the case shows that there were nine prosecutions brought before Walter L. Jones, Alderman. The prosecutor was the same, the cases were heard at the same time. Separate fees were charged in each case. The county paid them in but one case, and the question before me is, is the justice of the peace entitled to fees in each case?

The Act of March 10, 1905, P. L. 35, Section 2 provides "It shall be unlawful, in all criminal prosecutions hereafter instituted, to tax costs in and on more than one return, information, complaint, indictment, warrant, subpoena or other writ, against the same defendant or defendants, where there has been a severance or duplication of two or more offenses which grew out of the same occurrence, or which might legally have been included in one complaint and in one indictment by the use of different counts."

The question therefore to be decided is, could these nine cases be legally included in one complaint and in one indictment by the use of different counts? It was argued that the conjunctive "and" being used the question would resolve itself down to this-whether these various charges could have been laid in one indictment. Whilst ordinarily the construction asked for would prevail it is a question whether in this case the word "and" should not be read as "or" for the reason that the latter part of the sentence contains the words "By the use of different counts." The word "count" is not usually

applied to a complaint, but is peculiarly connected with the use of the word indictment. If the word "and" is to be understood in its usual significance the sentence could be read "which might legally have been included in one complaint by the use of different counts and in one indictment by the use of different counts." It is a question whether that is the sense of the sentence. There is no doubt that these different charges could have been included in one complaint, or at most in two, the complaint having been made by one prosecutor against the same defendants, although not all the defendants are included in all the charges. Passing on however to the question whether these charges when against the same defendants could have been laid in one indictment, it appears that the decisions are not uniform on the subject.

The earliest case in Pennsylvania is found in Com. vs. Gillespie, 7 S. & R., 469, and the statement of the rule is not as clear as it might be. "Even in case of felony, though it be true that no more than one offence should regularly be charged, in one indictment, and that the Court would quash the indictment before plea, or, if on the trial, the Court should think it might confound the prisoner, they may exercise a discretion in compelling the prosecutor to elect on which charge he will proceed, yet even in felonies, there is no objection to the insertion of several distinct offences of the same degree, though committed at different times, in the same indictment against the same offender."

In Harmon vs. Com., 12 S. & R., 69, it is said that there is "A general rule that though two felonies may be joined in an indictment, yet it is improper to join a felony and a mere misdemeanor.

In Com. vs. Shoen, 25 Sup. 211, the principle is recognized that "A defendant can not be indicted in one bill for several distinct and unrelated felonies.'

The earlier cases make a distinction between felonies and misdemeanors. Com. vs. Gouger, 21 Pa. Sup. 217. Com. vs. Dobbins, 2 Parsons 380. The joinder of distinct offenses in the same indictment when not repugnant in their nature and incidents is permitted. 3 Sup. Ct. 588 (596) Com. vs. Rockafellow. Com. vs. Shaffer, 45 Pa. Sup. Ct. 595.

As to the rule that a felony and a misdemeanor could

not be joined in one indictment, that was departed from in Harman vs. Com., 12 S. & R. 69. It has been decided as to misdemeanors that any number of like misdemeanors can be joined in one indictment. Com. vs. Adams, 2 Pa. Superior Ct. 46. There appears to be no reason why a distinction should be preserved in this regard between felonies and misdemeanors. "Indeed the statutory classification of crime as felony or misdemeanor is governed by no fixed or definite principle, but is purely arbitrary." 6 Sup., 405 (409) Com. vs. Hutchinson.

The rule seems to be that "subject in most instances to the discretion of the trial court to compel an election, separate felonies of the same general nature may be charged in separate counts of the same indictment in case they are triable in the same manner and punishable similarly." 22 Cyc. 398.

I therefore conclude that the claim of the justice for costs in each case can not be maintained. According to the case stated in each of the cases the charge was felonious entry. Nos. 84, 85, 86 and 87 Sept. Sessions, 1911, are against William Hecker, Jr., and Ellen Hecker, and the costs having been paid by the county in No. 84 there is nothing due the justice on these cases. Nos. 88, 89, 90, 91 and 92 September Sessions, 1911, are against William Hecker, William Hecker, Jr., and Ellen Hecker. These could have been included in one case. The justice is, therefore, entitled to charge costs in but one case.

Now, July 1, 1912, judgment is, therefore, entered for the sum of ten dollars and fifty cents ($10.50) in favor of the plaintiff.

SHORT & CO. vs. DELAWARE AND HUDSON CO.

Railroad Company-Common Carrier-Wrongful Detention of Goods by Carrier-Credit Contract with Consignee-Estoppel.

As between a common carrier and a consignee of freight who owns the goods, the carrier's lien for freighting may be extended by specific agreement so as to subject the goods to a lien for arrearages on previous shipments.

But, being in derogation of the common law, such lien is regarded with jealousy and must be supported by strict proof of the contract.

Hence, if the term of credit as defined by the contract is neither

certain nor capable of being reduced to certainty, the Court cannot say when a breach is incurred; and that is a fatal objection to such extended lien.

But, though the contract be free from objection, the carrier will be estopped from asserting such lien where without notice of his intention to claim it he collects the specific charges on a given shipment, takes from the consignee the usual delivery receipt, and then refuses to make actual delivery.

Replevin. In the Court of Common Pleas of Lackawanna County. No. 1609 September Term, 1909.

Price & Price, for Plaintiff.
Welles & Torrey, for Defendant.

Newcomb, J., August 12, 1912—This is an issue in an action of replevin which was by agreement of parties submitted to the Court for decision without a jury as provided by Act of 27th April, 1874, P. L. 109. In effect it is presented as upon demurrer to the affidavit of defense, as it was tried wholly upon the pleadings without other evidence. The chattels involved are several shipments of merchandise carried by defendant for delivery to the plaintiffs in this city, where they were retained for non-payment of freight charges owing by plaintiffs on account of other and previous shipments. The question at stake is whether it was so done in the valid exercise of defendant's rights under the terms of a credit agreement between the parties. On their face the undisputed facts are simple and may be stated as follows:

CONCLUSIONS OF FACT.

1. Defendant company is a common carrier of freight and passengers by railroad having a division terminal in this city where plaintiffs are wholesale provision merchants.

2. In 1908 plaintiffs asked defendant, through its freight agent, for a line of credit on their freight account which was allowed apparently by the carrier's informal acceptance of a proposal in writing as follows:

"E. E. Paine,

"Scranton, Pa., March 11, 1908.

"D. & H. R. R. Station.

"Dear Sir: I would respectfully apply for credit at your station. Said credit not to exceed the sum of five