plaintiff, if he has one leg to stand upon, it will not furnish him with two legs, when he has none." It is not an answer to this proposition to say that Beckwith is aleady a party because of the service upon him; for, it clearly appears that he was served not as a party defendant but as the manager found upon the premises.

The case of Miller v. Lehigh County, 181 Pa. 622, strongly relied upon by plaintiff, is not controlling. In that case the suit was originally brought against the Allentown and Bethlehem Rapid Transit Company alone and thereafter the court permitted the record to be amended by adding the Lehigh Valley Railroad Company, the County of Lehigh and the Township of Whitehall as co-defendants with the Allentown and Bethlehem Rapid Transit Company. The effect of the amendment was to add new names as parties defendant but the names were added to an existing legal entity properly sued as a defendant and in court as such defendan

Now, July 18, 1922, rule to show cause why amendment prayed for should not be allowed is discharged; the questions of law raised for the decision of the court by the affidavit of defense are sustained and the prothonotary is directed to enter judgment for the defendant and against the plaintiff without prejudice, however, to the right of plaintiff to institute a new action.

COMMONWEALTH v. LOWRY.

Record

Criminal Law-Assault and Battery-Justice's Hearing-Constitutional Law-Act of May 27, 1919, P. L. 306.

In a charge of assault and battery, the justice's record need not show that the justice, before binding over defendant to court, entered into a full hearing and investigation of facts charged, and that he was satisfied from the evidence that the prosecution was reasonably well founded.

The Act of May 27, 1919, P. L. 306, relating to assault and battery, imposes no new duty upon the justice, nor does it enlarge his jurisdiction or alter the character of the preliminary hearing.

The sections of said Act being so connected and dependent upon each other in subject matter, it must be presumed that the legislature would not have enacted one without the other; and the second section being unconstitutional, the first section necessarily becomes inoperative,

In the Court of Quarter Sessions of Lehigh County. No. 58 June Sessions, 1922. Commonwealth of Pennsylvania v. James Lowry. Assault and Battery. Motion to discharge defendant. Motion refused.

Richard W. Iobst, District Attorney, for Common

wealth.

Daniel M. Garrahan, for Defendant.

Reno, J., (Groman, P. J., concurring) Oct. 2, 1922. The defendant, indicted for assault and battery, moves for a discharge because the alderman's transcript does not show compliance with the provisions of section one of the Act of May 27, 1919 (P. L. 306) which is as follows:

"That in all cases of prosecutions for assault and battery, the alderman, justice of the peace, or magistrate, before whom such case is instituted, shall before he binds any person so charged over to the Court of Quarter Sessions upon the oath of any complainant, enter into a full hearing and investigation of the facts charged and shall only bind over the defendant to the said court when he is satisfied from the evidence that the prosecution is reasonably well founded."

The return of the alderman is in the usual form and, after reciting issuance and service of warrant and the holding of the preliminary hearing, concludes "after hearing all the testimony I bind the defendant over to the next term of court.

We note that there is nothing in the act requiring the alderman to return that he has complied with its provisions. If, therefore, such return is required it is because its necessity is to be implied from some express provision therein contained. Thus, if the offense were a new one or if the method of procedure had been radically changed or if the jurisdiction of the alderman had been enlarged we might well imply a legislative intent that the return disclose compliance with its provisions. But the act imposes no new duty upon the alderman. He has always been required upon the preliminary hearing of any criminal charge to determine whether the prosecution was reasonably well founded. Since the passage of the Act of May 14, 1915 (P. L. 499) he is required to enter

into a full hearing in certain cases, of which assault and battery is one, upon the demand of the defendant. These duties have long rested upon the alderman, but it has never been supposed that his failure to return that he had performed such duty and that the preliminary hearing revealed a prosecution reasonably well founded ousted our jurisdiction to try the offense. Always the presumption of regularity attaching to the acts of a public official has applied to his returns and when he returned that he remanded a case to court we have assumed that it was reasonably well founded. There is nothing in the act forbidding the indulgence of the same presumption with respect to assault and battery cases. Therefore, we will not hold that the omission to so certify prevents us from trying the prosecution.

It is suggested that this act is quite similar to that of March 18, 1909 (P. L. 42) under which many courts have held that, unless the alderman's return shows affirmatively compliance with its provisions, the Quarter Sessions Court acquires no jurisdiction. But this contention fails to take into account the wide difference between the two offenses covered by the respective acts and the tremendous change effected in surety of the peace cases by the act of 1909. Prior to the passage of the act of 1909 surety for keeping the peace was demandable of right, whenever the complainant, because of threats, believed he was in danger of being hurt in body or estate, whether such danger was actual or not and whether the threats were made with or without intent to do harm: See act of March 31, 1860 (P. L. 427; section 6). The only duty incumbent upon the alderman was to administer the necessary oath to the prosecutor and, upon the arrest of the defendant to bind him over, with one surety, for his appearance at the next term of court. He had neither the right nor was it his duty to determine the truth of the facts alleged in the information nor to ascertain whether there was any grounds for requiring defendant to enter bond for keeping the peace. That duty rested exclusively with the Court of Quarter Sessions. Now, the act of 1909 imposes upon him the duty of conducting a hearing and commands return of only such cases where the evidence shows that the prosecutor's danger of being hurt in body or estate is actual and that the threats were made by

defendant maliciously and with intent to do harm. That is, he must now hear the case, determine the facts and find a conclusion of law, thus doing that which formerly devolved exclusively upon the court. Besides, he is required to suggest to the parties the propriety of compromising their differences before entering into a hearing. The act altered entirely existing procedure and also considerably changed the nature of the offense. Consequently, in construing the provisions of the act of 1909, it is entirely proper to hold that the alderman's return should show a compliance with all the conditions which are there prescribed as the basis upon which a return must be founded and upon which his jurisdiction is predicated. But, as we have already shown, the act of 1919 makes no changes whatever in the duty of the alderman; it imposes no new duty upon him; it does not enlarge his jurisdiction nor alter the character of the preliminary hearing; it does not compel him to hear that which before the passage of the act he was not obliged and was not authorized to hear; it makes no change in his functions or powers (except that of assessing the costs which as we shall see is void) and, therefore, the long line of cases construing the act of 1909 have no value in determining the question before us. Our conclusion is that there is nothing in the act which requires a return in assault and battery cases different from that in other criminal cases.

Having reached this conclusion consideration of the constitutionality of the statute is perhaps unnecessary. But we cannot fail to note that the second section of the act has been judicially pronounced unconstitutional in an opinion which seems to be altogether beyond successful refutation: Commonwealth v. Bossler, 29 Dist. Rep. 191 (Endlich, P. J.): followed, Anderson v. Commonwealth, 70 Pitts. L. J., 68 (Evans, J.) Although the second section is not directly drawn into question by the motion now before us, we cannot escape the conclusion that if the second section is unconstitutional the first section falls with it. Unquestionably, the legislative purpose was to keep this court free of minor and petty cases and to that end the alderman was invested with a new power. viz., to assess the costs and to impose them upon the prosecutor or defendant or both. Unless that power was con

ferred upon the alderman the legislative purpose could not be effectuated, for it is plain that unless prosecutions can be terminated by him this court will still be obliged to try them. The power to assess costs upon the parties having been declared unconstitutional the purpose of the legislation is frustrated and the entire act is void. Undoubtedly, the two sections are intimately connected and are mutually dependent upon each other in subject matter and have for their object the accomplishment of the same purpose. We, therefore, experience no difficulty in presuming that the legislature would not have enacted the one without the other: Commonwealth v. Shaleen, 30 Pa. Sup. Ct., 1. The whole act being inoperative there is no basis upon which the defendant's motion can be granted.

Now, October 2, 1922, the motion to discharge the defendant is refused. Defendant will, within ten days after date, renew his bail for apparance at the January Sessions of this court; in default whereof bench warrant shall be granted upon motion of the Commonwealth.

WILKINSON v. GEIST.

Conflict of Laws-Deeds-Covenants-General WarrantyIncumbrance-Damages-Excessive Claim-Practice, C. P.Pleadings-Statement of Claim-Signing-Affidavit-DemurrerAnticipatory Replication—Joint Obligation.

Unless the pleadings show differently, the courts are obliged to assume that the laws of two sister states are similar.

A covenant against incumbrances, if any exist, is broken the instant the instrument containing the covenant is delivered, while a general warranty is broken only by an actual or constructive eviction.

Where, in a New Jersey deed, there was a covenant against incumbrances and a general warranty for quiet enjoyment, and it appears that there was an unsatisfied mortgage against the premises conveyed, given by a predecessor in title to the grantor, the covenant against incumbrances was broken at the very moment it was entered into, and a right of action then accrued.

The amount recoverable depends entirely upon what plaintiff suffered. The mere existence of the incumbrances entitled him to nominal damages, but if he has been compelled to extinguish the incumbrances, he is entitled to recover the price paid for it.

A plaintiff will not be turned out of court, upon demurrer, merely because he has perchance claimed more damages than he will ultimately recover.

The defendant, upon demurrer, cannot defeat the plaintiff's claim. by an averment that the mortgage on which plaintiff relies for dam